R. v. Ignagni, 2013 ONSC 5030
COURT FILE NO.: 99/12
DATE: 2013-07-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
JOHN RICHARD IGNAGNI
Lori Hamilton, for the Crown, appellant
Joanne McLean, for the accused, respondent
HEARD: March 22, 2012
K.L. Campbell J:
I
Overview
[1] On March 13, 2011, the respondent, John Richard Ignagni, was arrested on criminal charges of impaired driving and refusing to provide a breath sample. He was released on a promise to appear. On April 1, 2011, an information was sworn charging the respondent with those same offences. On the same date, in a separate information, the respondent was also charged with the provincial offence of failing to stop at a red light. On July 3, 2012, just over 15 months later, the Honourable Mr. Justice S. Ford Clements of the Ontario Court of Justice stayed all of the proceedings against the respondent on the basis that there had been a violation of the respondent’s right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms.
[2] The Attorney General of Ontario appeals against this decision. The Crown contends that there was no violation of the respondent’s right to be tried within a reasonable time in the circumstances of this case, and that the trial judge erred in his analysis and in his conclusion to the contrary. The respondent, on the other hand, argues that Clements J. committed no error in staying the proceedings. For the reasons that follow, I agree with the Crown that the trial judge erred in staying the proceedings against the respondent. In my view, there has been no violation of the respondent’s rights under s. 11(b) of the Charter. Accordingly, the appeal is allowed and a new trial is ordered.
[3] Before outlining the brief chronology of the appearances in this case, it will be useful to first outline the accepted analytical framework for the application of s. 11(b) of the Charter.
II
[Section 11(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec11parab_smooth) of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
The General Analytical Framework
[4] The law is clear that where an accused claims that he or she has not been tried within a reasonable time, the accused has the burden of establishing the alleged violation of s. 11(b) of the Charter on a balance of probabilities. The leading decision of the Supreme Court of Canada in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, at pp. 787-803, dictates that, in considering whether or not there has been a violation of s. 11(b) of the Charter, the following factors must all be taken into account:
(1) the length of the delay;
(2) any waiver of time periods by the accused;
(3) the reasons for the delay, including:
a. the inherent time requirements of the case;
b. the conduct of the accused or delays attributable to the accused;
c. the conduct of the Crown or delays attributable to the Crown;
d. systemic or institutional delays;
e. any other reasons for delay; and
(4) any prejudice to the accused.
[5] After all of these factors have been considered, the final stage of the analysis requires a balancing of the individual and state interests that s. 11(b) of the Charter is designed to protect, against the factual background of these factors. In essence, the court must balance the societal interest in seeing that persons charged with criminal offences are brought to trial against the interest of both the accused and society in the prompt adjudication of criminal charges. Before staying the charges, the court 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. See: R. v. Morin, at pp. 786-787, 809-811; R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-1223; R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, at paras. 28-38; R. v. Qureshi (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont.C.A.) at para. 9; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 30; R. v. Austin, 2009 ONCA 329, 245 C.C.C. (3d) 284, at paras. 42-43. R. v. Mahmood, 2012 ONSC 6290, 271 C.R.R. (2d) 94, at paras. 8-10, 104.
III
The Chronology of the Case
A. The Commencement of the Proceedings
[6] The information that charged the respondent with the following Criminal Code, R.S.C. 1985, chap. C-46, offences was sworn on April 1, 2011: (1) operating a motor vehicle while his ability to do so was impaired by alcohol or a drug; and (2) refusing to comply with a demand to provide samples of his breath for analysis. Both of these offences were alleged to have been committed on March 13, 2011. At the same time, the accused was also charged, in a separate information, with the provincial offence of failing to stop at a red light, contrary to the Highway Traffic Act, R.S.O. 1990, chap. H-8. This offence was also alleged to have taken place on March 13, 2011.
B. The First Appearance – April 26, 2011
[7] On April 26, 2011, the respondent briefly appeared in court. He was unrepresented by counsel, but was assisted by duty counsel. It was indicated on the record that the accused had “just received disclosure today.” Duty counsel indicated that the respondent “will be retaining counsel,” and requested that the matter be returned on May 31, 2011. The court so ordered.
C. The Second Appearance – May 31, 2001
[8] On May 31, 2011, the respondent appeared briefly with an agent for the lawyer the respondent had retained just a few days earlier. The designation filed pursuant to s. 650.01(1) of the Criminal Code was dated May 26, 2011. The agent for defence counsel indicated that they had received the “initial disclosure,” but were still waiting for the remaining disclosure. Indeed, in a letter dated that same day (May 31, 2011), defence counsel wrote to the Crown requesting this further disclosure of the DVD evidence. In court, the Crown indicated that the “booking” and “breath” DVDs, as well as the “in-car camera” DVD, had already been ordered but had not yet been received. The Crown indicated that another request would be made, and suggested another month-long adjournment. The court set the next return date for June 28, 2011.
D. The Third Appearance – June 28, 2011
[9] On June 28, 2011, the respondent and his counsel appeared briefly in court. The Crown indicated that the “further disclosure” of the DVDs was available and could be picked up in the Crown’s office. The Crown suggested that the matter be adjourned for a period of three weeks so that defence counsel and the Crown could have a pre-trial meeting in the interim period. The court set the next return date for July 19, 2011.
E. The Fourth Appearance – July 19, 2011
[10] On July 19, 2011, the parties appeared in court. They had not yet met to discuss the case. On the record of this appearance, the following explanation emerged as to why the meeting had not been arranged:
Defence counsel called the Crown’s office on July 5, 2011 in an attempt to arrange a meeting with the Crown assigned to the case. There was some internal delay in the communication of this message.
On July 14, 2011, the assigned Crown contacted defence counsel to try to arrange the pre-trial meeting between them. That call was not immediately returned by defence counsel.
The assigned Crown was away at an educational program at “Crown School” the week of July 18, 2011, and had advised defence counsel of this scheduling problem, noting that she would be returning on July 25, 2011.
[11] Defence counsel asked that the matter be adjourned for two weeks to permit the parties to arrange a meeting to discuss the case. In the result, the court adjourned the matter to August 2, 2011.
F. The Fifth Appearance – August 2, 2011
[12] On August 2, 2011, neither the respondent nor his counsel appeared in court to address the matter. The Crown suggested that there might have been a “miscommunication” between the respondent and his lawyer, and suggested a short adjournment with the issuance of a discretionary bench warrant. Duty counsel agreed to try to contact retained counsel for the respondent. In the end, the matter was adjourned to August 9, 2011.
G. The Sixth Appearance – August 9, 2011
[13] On August 9, 2011, the parties appeared in court. The meeting between the parties had been scheduled, albeit there was some confusion over precisely when. It was agreed that the case should be adjourned to August 16, 2011.
H. Scheduling the Judicial Pre-Trial Conference – August 16, 2011
[14] On August 16, 2011,the parties appeared in court. Defence counsel indicated that the pre-trial meeting between the parties took place on August 10, 2011, and that “we are in a position to set a trial date today.” Counsel also indicated, however, that a judicial pre-trial conference was mandatory as this case was an “impaired driving/over 80 matter” that was estimated to take more than a day. Accordingly, the parties set the judicial pre-trial conference for September 19, 2011. This was not the earliest available date offered by the trial co-ordinator, nor was it the earliest available date for defence counsel. The matter was, accordingly, adjourned to September 19, 2011.
I. The September 19, 2011 Appearance – Setting the Trial Date
[15] After the judicial pre-trial conference on September 19, 2011, the parties appeared in court to set the trial date. Defence counsel indicated that the earliest available court date for the trial was July 3, 2012, so the trial was scheduled for that date. Defence counsel indicated that he had available dates “every month leading up to July.”
J. The Application to Stay the Proceedings – July 3, 2012
[16] On July 3, 2011, the parties argued the application by the respondent to stay the proceedings as a result of an alleged violation of s. 11(b) of the Charter. At the conclusion of oral argument, the trial judge stayed the proceedings, promising subsequent written reasons for that decision. Those written reasons were released on September 10, 2012.
IV
The Standard of Appellate Review
[17] At trial, the Crown elected to proceed by way of summary conviction. Section 813(b)(i) of the Criminal Code provides that the Attorney General may appeal from an order that stays proceedings on an information or dismisses an information. This confers a broad jurisdiction on the appeal court to review the trial court record and determine for itself whether or not the trial judge reached the right conclusion in staying the proceedings. While this broad appellate jurisdiction includes considering whether the trial court made any specific legal errors or erroneously disregarded or misapprehended the evidence bearing upon the relevant issues, the ultimate responsibility cast upon the appeal court by s. 813(b)(i) is to determine whether the trial court reached the correct conclusion in staying the proceedings.
[18] The jurisprudence supports this view as to the scope of appellate review in relation to trial court decisions which stay criminal proceedings. More specifically, the authorities collectively hold that trial court assessments of the individual periods of delay in any given case, including how the trial judge characterized them under the recognized categories, are not akin to the exercise of any discretion. Therefore, the appeal court owes no deference to the trial court on such issues. Rather, applying a standard of correctness, the appeal court is obliged to substitute its own views for that of the trial judge if it disagrees with the legal analysis or the legal conclusions of the trial judge. At the same time, the authorities also hold that any findings of fact that are made by the trial judge during the course of his or her s. 11(b) analysis are only reviewable on the standard of “palpable and overriding error.” See: R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 71-72; Leave denied: [2010] S.C.R. xv; R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1, at para. 18; R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 19; R. v. Cranston, 2008 ONCA 751, 244 O.A.C. 328, at para. 35; R. v. M.(N.N.) (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont.C.A.) at paras. 5-6; R. v. Qureshi, at para. 27; R. v. Chatwell (1998), 1998 3560 (ON CA), 122 C.C.C. (3d) 162 (Ont.C.A.) at para. 10.
[19] Most recently, in R. v. Nguyen, 2013 ONCA 169, 303 O.A.C. 29, Watt J.A., delivering the judgment of the Court of Appeal for Ontario, articulated the governing standard of appellate review as follows, at para. 47:
It is common ground between the parties that on appeal, the trial judge’s characterization of the various periods of delay on s. 11(b) applications, as well as the ultimate decision concerning whether the delay is unreasonable, is reviewable on a correctness standard … The underlying findings of fact are subject to review on a standard of palpable and overriding error …
[citations omitted]
V
Analysis
A. The Length of the Delay
[20] The overall length of the delay is one of the important factors that must be weighed together with all of the other constitutionally relevant factors under s. 11(b) of the Charter. The length of delay which must be assessed is the total period of time from the date a person is charged with an offence until the date that his or her trial is finally completed. See: R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont.C.A.) at p. 345; Affirmed: 1997 331 (SCC), [1997] 3 S.C.R. 700.
[21] The determination as to when the overall delay in a case becomes “unreasonable” within the meaning of s. 11(b) of the Charter is not, however, simply a function of the passage of a specified period of time. There is no effective limitation period or sliding scale of constitutionally permissible time periods. The assessment of any s. 11(b) Charter claim requires the court to undertake a flexible and functional approach, balancing many constitutionally relevant factors. See: R. v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120, at pp. 1131-1132; R. v. Bennett (1991), 1991 2701 (ON CA), 64 C.C.C. (3d) 449, at p. 464; Affirmed: 1992 61 (SCC), [1992] 2 S.C.R. 168; R. v. Morin, at p. 789; R. v. Qureshi, at para. 11; R. v. G.(C.R.) (2005), 2005 32192 (ON CA), 206 C.C.C. (3d) 262 (Ont.C.A.) at paras. 15-20; R. v. MacMunn, 2008 ONCA 520, 233 C.C.C. (3d) 454, at paras. 26, 45; R. v. Allen, at p. 345; R. v. Batte (2000), 2000 5750 (ON CA), 145 C.C.C. (3d) 498 (Ont.C.A.) at para. 86; R. v. K.(A.) and V.(A.) (2005), 2005 11389 (ON CA), 195 C.C.C. (3d) 501 (Ont.C.A.) at paras. 184-188.
[22] The parties agree that the total length of the delay that must be considered in the present case is the time period from the date the information was sworn (April 1, 2011) to the date that the accused would have been tried were it not for his s. 11(b) Charter application (July 3, 2012) – a total period of just over 15 months. The parties also agree that this is a sufficiently lengthy period of time so as to justify a detailed analysis of the relevant considerations under s. 11(b) of the Charter. It was this period of time that the trial judge initially found “warranted an enquiry” and which he ultimately found “unreasonable” in all of the circumstances. See: R. v. Ignagni, September 10, 2012, Toronto docket number 4817-998-1170018613 (hereafter referred to as Trial Reasons), at paras. 53, 67.
B. No Waiver by the Accused
[23] In the present case there is no suggestion that the respondent waived any individual periods of time. Accordingly, nothing more needs to be said about the issue of waiver.
C. The Reasons for Delay
1. The Inherent Time Requirements of the Case
a. The Neutral Intake Period (April 1-June 28, 2011) – Three Months
[24] The first period of time that requires consideration is the three month period between the commencement of the proceedings against the respondent (April 1, 2011) and the completion of the disclosure process (June 28, 2011).
[25] Of course, whenever criminal proceedings are initiated, regardless of the specific nature of the allegations against the accused, there are invariably a number of preliminary matters that the parties must attend to. These “intake” functions typically include matters such as judicial interim release hearings, applications for legal aid, the retention of defence counsel by the accused, and disclosure by the Crown. These preliminary matters consume time. Accordingly, the courts have recognized that these preliminary matters are part and parcel of the inherent time requirements of any criminal case and, for purposes of any s. 11(b) Charter analysis, should be viewed as neutral, in that they are attributed to neither party. See: R. v. Morin, at pp. 792-793.
[26] While the governing appellate court authorities have not yet articulated any nationally applicable administrative guideline for the permissible duration of this neutral intake period, they have, flexibly endorsed intake periods varying between as little as two months and as long as eleven months, depending upon the nature of the case and the degree and nature of the intake functions to be completed. See: R. v. Mahmood, at para. 38; R. v. Duhamel, 2012 ONSC 6448, [2012] O.J. No. 5392, at para. 35.
[27] As the trial judge accurately noted, in “routine drinking and driving” cases, an intake period of approximately two months in duration is normal and reasonable. See: Trial Reasons, at para. 56; R. v. Morin, at pp. 804-805; R. v. Meisner, (2003), M.V.R. (4th) 271, [2003] O.J. No. 1948 (S.C.J.) at paras. 29-32; Affirmed: (2004), 2004 30221 (ON CA), 190 O.A.C. 24, [2004] O.J. No. 3812 (C.A.); R. v. Lahiry, 2011 ONSC 6780, 283 C.C.C. (3d) 525, at para. 19. That is not to say, however, that periods of time greater than two months are necessarily unacceptable or unreasonable. It will depend upon the circumstances of the particular case, the particular intake functions that were necessary, the time taken to complete them, and the explanations provided for the delay.
[28] In the present case, the trial judge concluded that the only justifiable neutral intake period was six weeks. He attributed the remaining six weeks of this three month time period to the Crown. The trial judge reached this conclusion on the basis that the police could have expedited the disclosure process immediately after the arrest and release of the respondent, and they could have had all of the potential disclosure, including all of the DVDs, in the hands of the respondent by May 15, 2011. Indeed, according to the trial judge, there was “no basis to justify a delay in disclosure beyond May 15, 2011.” The apparent “communication break-down” between the Crown and the police, caused by some “internal administrative problems” in the Crown’s office, which prevented the disclosure process from being completed until June 28, 2011, was simply “unacceptable.” See: Trial Reasons, at paras. 6-9, 56-57.
[29] With respect, I disagree with this analysis. First, the mere fact that it might have been possible for the Crown and the police to expedite the preparation of disclosure and provide it on an earlier date provides no justification for imposing a shorter permissible intake period on the parties than has been judicially recognized as appropriate and acceptable even in “routine” drinking and driving cases. As Code J. aptly observed in R. v. Lahiry, at para. 22, to focus on the fact that it might have been possible for the police to produce all of the potentially necessary disclosure materials more quickly “is an over-simplification of the function of an intake period.”
[30] In this regard, it is important to recall that the disclosure process is not the only function that must be completed during the intake phase of the proceedings. In the present case, for example, the respondent had not even retained defence counsel by the expedited May 15, 2011 deadline imposed by the trial judge. In fact, the respondent did not have his lawyer in place until toward the end of May, and it was not until May 31, 2011 that his lawyer expressly sought the additional DVD disclosure from the Crown. Accordingly, any realistic neutral intake period in the present case could not reasonably be viewed as having concluded until at least the court appearance on May 31, 2011, when the respondent first appeared with counsel.
[31] Second, in my view the judicial assessment of the reasonableness of any individual intake period must be undertaken with some flexibility and sensitivity to common practical realities. It will be the rare case where, viewed in isolation and employing the perfect 20:20 vision of hindsight, it will not be possible to conclude that the necessary intake functions could have been performed more quickly and efficiently. However, the criminal justice system must simultaneously accommodate a great many cases, especially in the busy Ontario Court of Justice centres, and human error and inefficiency will undoubtedly be evident on occasion. What is required by s. 11(b) of the Charter, however, especially at the intake phase of the process, is not perfect systemic efficiency, but reasonably prompt and forward progress in all of the necessary intake functions. That is not to say that courts should simply accede to government resource allocations and common systemic problems, and then tailor the permissible periods of intake or systemic delay accordingly. See: R. v. Morin, at p. 795. It is only to caution that a healthy degree of common sense must be employed in the after-the-fact analysis of the speed of criminal proceedings, especially at their very outset.
[32] Third, it is important to recall that the Crown’s disclosure obligations, as dictated by the Supreme Court of Canada decision in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, are only triggered by a request by defence counsel. Given that the request for the additional DVD disclosure in this case was not made by counsel for the respondent until May 31, 2011, it seems only appropriate that the Crown have some reasonable time period within which to respond to such a disclosure request. The implicit assumption of the trial judge, that such additional DVD disclosure must invariably be part of the initial package of disclosure materials, and be delivered even before any request on behalf of the accused, is contrary to R. v. Stinchcombe and inconsistent with wise public policy considerations. This type of DVD disclosure is not inexpensive, and may not be necessary in all cases. For example, if the evidence against the accused is overwhelming and the accused is remorseful and wishes to enter an early guilty plea, it may well be unnecessary for the Crown to produce this additional DVD disclosure. Accordingly, to avoid needlessly wasting scarce resources, such additional disclosure can, in accordance with R. v. Stinchcombe, await the accused’s retention of defence counsel and the making of a request for this additional disclosure.
[33] In my view, the neutral intake period in the present case should be viewed as spanning the entire three month period from the swearing of the informations on April 1, 2011 until the court appearance on June 28, 2011 when disclosure was complete. The initial package of disclosure materials was made available to the accused at the first appearance on April 26, 2011. Thereafter, it took the respondent approximately another month to retain counsel to act on his behalf. He had done this by the May 31, 2011 appearance. While the Crown had tried, in advance, to secure the production of the additional DVD disclosure that was requested by defence counsel on May 31, 2011, it ultimately took nearly another month for the Crown to obtain and disclose the various DVDs.
[34] While this intake phase of the case could certainly have been completed with greater dispatch, I am not prepared to say that this three month intake period exceeded the bounds of reasonableness in all of the circumstances. In any event, by concluding that a period of only half this duration was appropriate for the intake functions in the circumstances of this case, I am satisfied that the trial judge erred.
b. Pre-Trial Meeting Between the Parties (June 28 to August 16, 2011) – Seven Weeks
[35] The second period of time that requires consideration is the nearly seven week period between the court appearances on June 28, 2011, when the disclosure process was completed, and August 16, 2011, after the parties met to discuss the case together. Once the disclosure was complete, both parties wanted the opportunity to discuss the case amongst themselves before taking the next step and scheduling the trial proceedings. This was a reasonable and professionally responsible step in this case. From one perspective, this delay might properly be viewed as a preliminary matter that falls within the intake period. In any event, however, it is generally time that is well and productively spent discussing the case.
[36] When the case was adjourned from June 28 to July 19, 2011 the parties had three weeks to schedule a meeting together. Defence counsel did not contact the Crown’s office for a week, and it took the Crown more than a week to return the call. Defence counsel did not immediately return the Crown’s call, and the Crown was out of the city at an educational conference the following week. At the court appearance on July 19, 2011, it was suggested that another two weeks would permit the parties to meet. The matter was, accordingly, adjourned to August 2, 2011. However, since neither the respondent nor his lawyer appeared in court on August 2, 2011, the matter had to be adjourned for another week. By the August 9, 2011 court appearance, the parties had finally scheduled their meeting and agreed that the case should be adjourned to August 16, 2011.
[37] In his examination of this time period, the trial judge observed that some of this time was properly “attributable to inherent time requirements of scheduling and conducting the pre-trial” meeting. The trial judge concluded, however, that such meetings ought to be scheduled and completed within a relatively short period of time in a routine case and, in the absence of unusual circumstances, “no more than two to three weeks is reasonable.” After examining the circumstances surrounding this period of time, the trial judge concluded that “at least one week of this delay period was attributable to the [respondent],” and nearly three weeks (20 days) was attributable to “Crown delay.” See: Trial Reasons, at para. 58.
[38] With respect, I disagree with this analysis. In my view the entire seven week period of time is properly attributed to the inherent time requirements of the case. While the scheduling of this meeting certainly took longer than either of the parties had hoped, neither party should be held solely responsible for causing this entire period of delay, and it is not realistically possible to parse out the days and weeks in a way that fairly divides responsibility for the purposes of s. 11(b) of the Charter. In other words, while it should not have taken seven weeks to organize and conduct a meeting between the parties, it is difficult to break down this time period and accurately attribute responsibility for numerous, short individual periods of delay. In addition, given that the parties were trying to schedule this meeting during the summer months, when people are often on vacations, have reduced work schedules, or are engaged in continuing education programs, in my view it makes the most practical sense to attribute this entire time period to the inherent time requirements of the case.
[39] The third period of time that requires consideration is the period of just over one month between the court appearances on August 16 and September 19, 2011. This delay was required to accommodate the mandatory judicial pre-trial conference before the trial date was set.
[40] The law now appears to be settled that where a reasonable period of time is spent by the parties in relation to judicial pretrial conferences, this time is properly viewed as part of the inherent time requirements of the case. See: R. v. Tran, at para. 34; R. v. Khan, at paras. 44-45, 53-55; R. v. Lahiry, at para. 116; R. v. Richards, 2012 ONSC 3479, [2012] O.J. No. 2783, at paras. 9-10; R. v. Emanuel, 2012 ONSC 1132, 255 C.R.R. (2d) 180, at paras. 13-15; R. v. Rutherford, 2012 ONSC 2969, [2012] O.J. No. 2306, at paras. 41-42; Scott Latimer, “Defining JPT Time for s. 11(b) Purposes” (2011), 84 C.R. (6th) 244; R. v. Mahmood, at paras. 54-61; R. v. Duhamel, at paras. 40-42; R. v. Pakjou and Pakjou, 2013 ONSC 1419, [2013] O.J. No. 1050, at paras. 30-31.
[41] For example, in R. v. Tran the accused were charged with drug-related offences. The trial judge stayed the proceedings upon concluding that a 19 month delay violated s. 11(b) of the Charter. One of the individual periods of delay in that case was some 46 days that were consumed for the pre-trial conference that was required by court policy. The trial judge viewed that delay as systemic or institutional delay. The Court of Appeal for Ontario disagreed. Simmons J.A., delivering the judgment of the court, stated, at para. 34:
… it seems to me that requiring a judicial pre-trial to set a 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] More recently, in R. v. Nguyen, at para. 54, Watt J.A. stressed the importance of judicial pre-hearing conferences as “an essential feature of our criminal procedure” as they are “an invaluable ally in the struggle to promote a fair and efficient criminal trial process.” In relation to the characterization of such pre-trial conferences in any analysis under s. 11(b) of the Charter, Watt J.A. stated:
The time required to schedule, prepare for, and conduct pre-hearing conferences should be considered an inherent time requirement of the case, both generally and specifically for the purposes of a s. 11(b) analysis …
[citations omitted]
[43] Significantly, in R. v. Nguyen, at paras. 59-60, Watt J.A. concluded his discussion of pre-trial conferences by stating that they were “justified and necessary tools in busy judicial centres” that were “designed to ensure effective and efficient use of available court resources” and were necessary to “protect not only the Charter rights of the persons charged, but also society’s interest in determining allegations of serious criminality and their merits.” Watt J.A. emphasized that in the absence of just cause, courts deciding whether an accused’s rights under s. 11(b) of the Charter have been infringed “should be slow to second-guess the need for or number of such conferences.”
[44] These decisions are directly applicable to the circumstances of the present case. Downtown Toronto is clearly a “busy judicial centre,” and the College Park court policy then in place, requiring mandatory judicial pre-trial conferences in certain cases, was clearly “designed to ensure the overall timeliness of the system,” thus protecting the Charter rights of all accused persons being tried in that jurisdiction. Moreover, the one month that was necessary to allow that pre-trial conference to take place was clearly reasonable.
[45] As indicated in R. v. Mahmood, at para. 59, pre-trial conferences serve many useful purposes:
They require the parties to wrestle with the real issues in the case before setting the matter down for trial. Admissions can be made. Issues can be narrowed and focused. Pre-trial motions can be discussed and efficiently planned. Potential problems can be addressed, if not resolved. Practical issues regarding the trial can be anticipated. Such conferences not only permit the parties to better prepare themselves for trial, they invariably reduce the court time necessary to try the matter, and ensure that the trial proceedings move as efficiently as justice permits. It is hardly surprising, therefore, that busy judicial centers require, as a matter of court policy, that before valuable court time and resources are scheduled and committed for the trial of particular kinds of cases, such pre-trial conferences must be held.
[46] Without the benefit of R. v. Nguyen, but in the face of R. v. Tran, the trial judge concluded that this period of time should be characterized as institutional delay. In the course of his analysis of this issue, the trial judge also concluded that the judicial pre-trial conference in this case “did not serve any useful trial management function” as this was a “routine and uncomplicated” case and defence counsel for the accused was “experienced and well-versed” in the issues presented by such a case. See: Trial Reasons, at paras. 13, 20, 28, 41-42, 59-61.
[47] With respect, I disagree with this analysis. First, given the decisions of the Court of Appeal in R. v. Tran and R. v. Nguyen, not to mention the other decisions now consistently following this line of authority, I am bound to conclude that the trial judge erred in characterizing the time spent to conduct the judicial pre-trial conference as institutional delay. It is accurately viewed as one of the inherent time requirements of the case.
[48] Second, where the court has itself created a mandatory policy requiring particular kinds of cases to have a judicial pre-trial conference before a trial date is set, as was the case in the College Park location of the Ontario Court of Justice in August of 2011, it matters not whether the individual trial judge ultimately hearing the case subsequently considers the time spent on that judicial pre-trial conference wise or wasted. This is because neither party had any choice in the matter. Their participation was mandatory. The court would not set a date for the trial until the required judicial pre-trial conference had been conducted. In such circumstances, it is hardly fair to retroactively review the usefulness of such mandatory conferences for the purposes of s. 11(b) of the Charter and, if they seemed unproductive, call the delay caused by the conference “institutional” and attribute it to the Crown. In such circumstances, the Crown is no more responsible for the brief delay required for the pre-trial conference than the accused. The fact that the Ontario Court of Justice in the College Park location has subsequently changed its policy regarding mandatory judicial pre-trial conferences in such cases does not impact the above analysis, as this case was governed by the previously operative court policy.
[49] Third, it is important to appreciate that judicial pre-trial conferences are not conducted solely for the benefit of the accused or his or her counsel. Such conferences may well have a productive usefulness even in cases where the accused has retained experienced counsel with an expertise in defending the charges facing the accused. Court time and resources are limited and valuable. Courts must take responsibility for the wise and efficient allocation of their precious resources. There may well be certain types of cases – even cases seen as more “routine” – where courts will not be content to simply take the word of counsel (even senior and experienced counsel) as to how long a trial may take, without carefully examining the matter, with the assistance of both parties, by means of a constructive judicial pre-trial conference. See: R. v. Nguyen, at para. 59-60.
[50] Moreover, a drinking and driving case with Charter applications and requiring more than a day of court time to try is difficult to accurately describe as “routine.” These kinds of cases are no longer short, summary trials that can be simply tried with great dispatch. The mere fact that there are many of these kinds of cases does not mean that they should be viewed as “routine.”
[51] In summary, the period of just over one month between August 16 and September 19, 2011, to permit the mandatory judicial pre-trial conference, must be viewed as reasonable and part of the inherent time requirements of this case.
2. Delays Specifically Attributable to the Parties
[52] In assessing the actions of the accused and the Crown under s. 11(b) of the Charter, the court is not attempting to assign blame to one of the parties for any period of delay. Instead, the court is trying to accurately assess the factual causes for the delays in the particular case. In this analysis, the court takes into account all of the actions voluntarily undertaken by the accused or the Crown which, in fact, caused delay in the proceedings. If the conduct of a particular party has caused a particular delay, that delay is attributed to, or counted against, that party. See: R. v. Morin, at pp. 793-794; R. v. Philip (1993), 1993 14721 (ON CA), 80 C.C.C. (3d) 167 (Ont.C.A.) at p. 173; R. v. K.(A.) and V.(A.), at para. 94-97; R. v. Ribic 2008 ONCA 790, 238 C.C.C. (3d) 225, at para. 138.
[53] While the trial judge attributed some periods of delay to both the actions of the Crown and the accused, in my view, he erred in so doing. I would not attribute any individual delays to either party.
3. Systemic or Institutional Delay
[54] The fourth and final period of time that requires consideration is the period of nine and one-half months between the set date appearance on September 19, 2011 and the scheduled trial date of July 3, 2012.
[55] Systemic or institutional delay is properly defined as the period of delay which commences when the parties are ready for trial but the system cannot accommodate them. In an attempt to articulate the approximate permissible scope of systemic delay the Supreme Court of Canada has set the following “administrative guidelines:” (1) in the range of eight to ten months in the Ontario Court of Justice; and (2) in the range of six to eight months in the Superior Court of Justice. See: R. v. Morin, at pp. 794-800; R. v. MacDougall, at paras. 53-55; R. v. Chatwell, at pp. 165-167; R. v. S.(L.) (1999), 1999 3002 (ON CA), 133 C.C.C. (3d) 493 (Ont.C.A.) at para. 11. Therefore, even if this entire nine and one-half month period of time was viewed as systemic or institutional delay, it would still be within the eight to ten month administrative guideline set by the Supreme Court of Canada.
[56] However, institutional delay is not calculated by simply counting the time between the set date appearance and the trial date, even in cases like the present one where the parties have taken the “first available” date offered by the court. Rather, a proper calculation of institutional delay must allow for the reality that parties and their respective counsel require time to prepare for the case and clear their calendars of other professional responsibilities so they can conduct the litigation. Parties are not automatically deemed ready to proceed with the hearing immediately upon the date being set. See: R. v. Lahiry, at paras. 2, 25-37; R. v. Tran, at para. 32; R. v. M.(N.N.), at paras. 28-29.
[57] At the set-date appearance on September 19, 2011, defence counsel indicated that he had available dates in “every month leading up to July” of 2012. Based on this submission, the trial judge was prepared to accept that defence counsel was fully “ready for trial on the set date” appearance (if not earlier) and would have been able to immediately “conduct a competent defence” for the respondent. The trial judge indicated that he would have held that this entire nine and one-half month period was institutional delay, expect for the court rule that required Charter notices to be filed with 15 days advance notice to the Crown. For this reason, the trial judge concluded that it was reasonable to deduct, from this period of institutional delay, a period of 15 days “for preparation,” attributable to the inherent time requirements of the case. See: Trial Reasons, at paras. 62-63.
[58] I agree with the trial judge that a period of time must be deducted from this nine and one-half month period of delay to properly account for the time counsel (for both parties) would need to prepare for the case and clear their calendars of their other professional obligations. However, I disagree that 15 days is sufficient for these purposes. In my view, a period of one month should be allocated for these purposes.
[59] First, all competent and professional defence counsel require some out-of-court time to prepare their case in advance of trial. Invariably they must review and analyze the file, arrive at a theory and determine a strategy for the case, interview potential witnesses, draft an outline of their cross-examinations, draft and file any potential pre-trial motions (including those brought pursuant to the Charter of Rights), anticipate and research any points of law that may arise during the course of the trial, and prepare an outline of their legal and factual arguments. The more complex the case, the more preparation time will be required. However, even for short matters that are not especially complicated, at least some period of time must be devoted and allocated to such preparatory work.
[60] Second, as a matter of practical reality, in busy judicial centres like those within the Toronto region, counsel in criminal cases do not arrive at set date appearances entirely ready for trial. Every counsel knows full well that trial dates are not immediately available. As there is no risk that the trial will take place immediately, counsel wisely do not prepare for the case as if they were immediately going to trial on the set date appearance. They are confident in their quite accurate belief that there will be another time for them to focus on their trial preparations, closer in time to the scheduled trial proceedings.
[61] Accordingly, it is very difficult to accept that on the September 19, 2011 set date appearance, defence counsel for the respondent, knowing that the trial in this case would be scheduled to take place months in the future, arrived in court fully “ready for trial,” with all of his important preparation work already completed, as the trial judge appears to have concluded. Indeed, in my view the trial judge erred in reaching this conclusion. Realistically, it would take virtually any busy defence counsel at least 15 days to find a convenient opening in his or her professional calendar and fully prepare for a trial in a drinking and driving case that the parties agree will consume more than a day of court time. This 15 day period is the minimum period of time that ought to have been set aside for purposes of defence counsel’s preparation.
[62] It is important to keep in mind that Crown counsel must also have an opportunity to prepare for trial. Under the governing Rules of the Ontario Court of Justice in Criminal Proceedings, enacted under s. 482(2) of the Criminal Code, the Crown was entitled to a 15 day notice period to prepare to respond to the Charter motion that was to be brought by the respondent. Accordingly, as the trial judge accurately noted, a period of at least 15 days had to be allocated for the purposes of the Crown’s preparation.
[63] Therefore, in my opinion, adding these two 15 day preparation periods together suggests that a period of at least one month must be attributed to the inherent time requirements of this case. This month-long period of time was required to permit counsel for both parties to clear their respective professional schedules and prepare for the litigation in this case. In the result, no more than eight and one-half months of this nine and one-half month time period can properly be viewed as systemic delay. This eight and one-half month period, of course, falls easily within the well-established administrative guideline of eight to ten months of permissible systemic delay in the Ontario Court of Justice.
[64] I hasten to add that these administrative guidelines are not fixed and inflexible limitation periods or arbitrary ceilings on the time within which an accused must be brought to trial. Even in cases where the period of systemic delay exceeds the recognized guidelines, such a circumstance does not automatically result in a violation of s. 11(b) of the Charter and a staying of the criminal charges against the accused. Rather, an unduly lengthy period of systemic delay will weigh against the Crown in the overall assessment of the reasonableness of the total delay. See: R. v. Morin, at pp. 794-800; R. v. Kovacs-Tatar (2004), 2004 42923 (ON CA), 192 C.C.C. (3d) 91 (Ont.C.A.) at paras. 19, 27-30, 51-52; R. v. R.(T.) (2005), 2005 18709 (ON CA), 197 C.C.C. (3d) 14 (Ont.C.A.) at para. 34.
4. Confusion Over the Scope of the Administrative Guidelines for Systemic Delay
[65] In establishing the “administrative guidelines” of eight to ten months in the Ontario Court of Justice and six to eight months in the Superior Court of Justice, the Supreme Court of Canada was articulating the approximate permissible range of systemic delay in those courts. In establishing these guidelines the Supreme Court of Canada was not suggesting that these ranges were the total time periods within which criminal cases should be tried – from start to finish – in those courts. See: R. v. Morin, at pp. 798-800; R. v. MacDougall, at paras. 53-55; R. v. Chatwell, at paras. 11-15; R. v. S.(L.), at para. 11.
[66] For example, time periods consumed by intake matters must be distinguished from time periods properly viewed as systemic or institutional delay. Reasonable intake periods are essentially excluded from consideration under s. 11(b) of the Charter as they are viewed as justifiable and neutral. Institutional delay, however, is delay that counts against the Crown in the analysis under s. 11(b) of the Charter. Distinguishing these two different types of delay shows that reasonable intake periods are properly viewed as periods of time in addition to the permissible periods of systemic delay. See: R. v. M.(G.C.) (1991), 1991 7057 (ON CA), 65 C.C.C. (3d) 232 (Ont.C.A.) at pp. 241-242; R. v. Meisener, at paras. 30-32; R. v. G.(C.R.), at paras. 15-19; R. v. Mahmood, at paras. 65-66; R. v. Duhamel, at para. 46.
[67] In his analysis of this case, the trial judge appears to have misunderstood the more limited purpose of the “administrative guidelines” adopted by the Supreme Court of Canada in relation to permissible systemic delay. More particularly, the trial judge appears to have mistakenly viewed the eight to ten month range of permissible systemic delay in the Ontario Court of Justice as the desirable range for the total delay in the Ontario Court of Justice from the commencement of the proceedings against the accused to the conclusion of the trial.
[68] This misunderstanding by the trial judge was evident from the outset of the s. 11(b) application. At the very commencement of the proceedings, before the accused was even arraigned, the trial judge indicated that he had read the materials, and he turned to the Crown first and stated:
It appears fairly clear that even on the Crown analysis the admitted delay of both Crown and institutional delay is just shy of ten months. Why should it not be stayed?
[69] The Crown responded that the delay was “still within the guidelines.” At that point, the respondent was arraigned, the Crown elected to proceed summarily on the criminal charges, and the respondent pled not guilty to all of the charges. Returning to the argument of the application under s. 11(b) of the Charter, the trial judge again posed his inquiry of the Crown as to why the proceedings should not be stayed:
… [In your Factum] you indicate that the total institutional delay and Crown delay is nine months two weeks and two days. And my question to you is, why should it not be stayed? And secondly, if I do not agree with your assessment of the combined Crown and institutional delay, and I find it to be outside of the ten month period, does the same argument not apply?
[70] When the Crown began to answer this question by observing that neither s. 11(b) of the Charter nor the judicial “guidelines” operate as a “limitation period,” the trial judge stated: “But where it is a straight forward case and it is not complex there is a sliding scale, is there not?”
[71] Notwithstanding the Crown’s submissions in response, this misunderstanding on the part of the trial judge continued through to his reasons for staying the proceedings. More particularly:
In outlining the position of the accused, the trial judge mentioned that “[t]he notion that a simple straightforward case ought to be tried within a period of eight to ten months” was “established many years ago and the intervening years have seen little or no success in reducing those guidelines.” See: Trial Reasons, at para. 21.
In discussing the law regarding the limits on institutional resources, the trial judge commented that the Supreme Court of Canada in R. v. Morin, at pp. 798-799, had established as a guideline that eight to ten months was a reasonable period of time to trial in the Provincial Court for an uncomplicated matter. While acknowledging that this guideline was “never meant to be a limitation period,” the trial judge said that it was important to consider that, in R. v. Morin, the Supreme Court of Canada said that “eight months is a reasonable goal, not that missing the goal by eight months is reasonable.” See: Trial Reasons, at para. 38.
In discussing the decision of the Supreme Court of Canada in R. v. Askov, the trial judge stated that “in the 22 years since that judgment, little has been accomplished to reduce the timeline between charge and the completion of trials in routine matters.” The trial judge noted that, in R. v. Morin, at p. 798, the court acknowledged that “the Crown sought, as a goal, a delay of no more than six to eight months in the Provincial Court,” but commented that this goal had “proven to be entirely illusory.” See: Trial Reasons, at para. 47.
In the final paragraphs of his reasons, the trial judge concluded that once the Crown delay of three months was factored together with the institutional delay of nine months, the overall delay in the case was “in the range of 12 months.” He noted that while this delay was “beyond the guidelines,” it was not more than double, as was the case in R. v. Godin. Then, citing R. v. Tran, at para. 64, the trial judge concluded that the prejudice experienced by the respondent supported a “deviation toward the lower end of the eight to ten month guideline” in this case. The trial judge stated that even without any Crown delay, “the delay in this case due to actual prejudice and the risk of prejudice required that this trial be heard in a range closer to eight months than ten months.” See: Trial Reasons, at paras. 64-66.
[72] As I have already indicated, in assessing the correctness of these remarks by the trial judge it is critical to appreciate that in R. v. Morin, when the Supreme Court of Canada was announcing the permissible constitutional limits of institutional delay, the court was not suggesting that the eight to ten month period mentioned in relation to the Provincial Court was the total time period within which criminal charges had to be tried in the Provincial Court. As the following passage from the judgment of Sopinka J., at pp. 798-799, makes clear, the eight to ten month period is provided only as the permissible limit of institutional delay, and nothing else:
In this case we are dealing with the Provincial Court. The suggested period of institutional delay ranges from 6 to 10 months. The respondent [Crown] suggests that 8 to 10 months of purely systemic delay would not be unreasonable in the Provincial Court. It admits, however, that it is aiming at institutional delay of no more than 6 to 8 months in Provincial Court. Arbour J.A. in Bennett, supra, suggests “a delay of 8½ to 9 months in getting a case to trial in the Provincial Court, although not a model of brevity, is not outside the range of reasonableness” (p. 41).
In Askov, Cory J., after reviewing comparative statistics, suggested that a period in the range of 6 to 8 months between committal and trial would not be unreasonable. Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between 8 and 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in Askov. In such a case this institutional delay would be in addition to the delay prior to committal. This reflects the fact that after committal the system must cope with a different court with its special resource problems. It is therefore essential to take into account the inevitability of this additional institutional delay.
[emphasis added]
[73] Accordingly, to the extent that the trial judge proceeded on the basis that the total period of permissible delay in the Ontario Court of Justice was eight to ten months, he erred.
D. Prejudice to the Accused
1. The Governing Legal Principles
[74] As a matter of law, prejudice is not automatically presumed to have been suffered by an accused in every case. Normally, prejudice must be established by evidence. Prejudice may be inferred, however, in appropriate circumstances, where there has been a “very long and unreasonable delay,” or a delay that is “substantially longer than can be justified on any reasonable basis.” The potential inference of prejudice, in other words, must flow from long periods of delay that are unreasonable and unjustified. Of course, the longer these periods of delay, the more likely it is that an inference of prejudice will be drawn. Accordingly, any prejudice resulting from the inherent time requirements of the case, or caused by the accused, or which is otherwise inevitable and necessary, is entitled to no weight. See: R. v. Morin, at pp. 801-803; R. v. Sharma, 1992 90 (SCC), [1992] 1 S.C.R. 814, at pp. 817-818, 828-829; R. v. White (1997), 1997 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont.C.A.) at pp. 238-245; R. v. Godin, at paras. 31, 37; R. v. Faulkner, 2013 ONSC 2373, [2013] O.J. No. 2315, at paras. 115-128.
[75] It is also important to keep in mind that the focus of the constitutional protection provided by s. 11(b) of the Charter is in relation to the prejudice that may arise from the delay in disposing of the matter, not the prejudice the accused may suffer as a result of having been charged with the commission of an offence. See: R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1672; R. v. Kovacs-Tatar, at paras. 32-34.
2. The Interests that [s. 11(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec11parab_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) is Designed to Protect
[76] There is a recognized societal interest underlying the operation of s. 11(b) of the Charter. However, the primary purpose of s. 11(b) of the Charter is the protection of the individual rights of accused persons, namely: (1) the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings; (2) the right to liberty, which is protected by trying to minimize exposure to restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions; and (3) the right to a fair trial, which is protected by attempting to ensure that proceedings take place while evidence is available and fresh. See: R. v. Morin, at pp. 786-787; R. v. Askov, at pp. 1219-1223; R. v. Mahmood, at para. 9.
3. The Prejudice in the Present Case
[77] There is some evidence that these pending charges have had an adverse impact on the security interests of the respondent. More particularly, in his affidavit, the respondent explained that since his arrest, he has worried about these charges and their potential impact upon his future employment. The respondent drives for a living, and he complained of increasing stress over whether he will be able to continue with his current employment if he is ultimately convicted of these offences.
[78] The respondent did not suggest that he has suffered any prejudice to his liberty interests. As I have indicated, following his arrest, the respondent was immediately released on a promise to appear.
[79] Similarly, the respondent has suffered no discernible prejudice to his fair trial interests. In his affidavit, the respondent indicated that his memory of the relevant events was better at the time of the alleged offences than it was at the time of the scheduled trial proceedings. That is, however, little more than a statement of the obvious – memories get worse, not better, over time. Moreover, the parties agreed that as soon as the respondent retained counsel, relatively close to the time of the events in question, detailed notes were made about what happened, and these notes could be used to assist the respondent in refreshing his memory.
4. The Conclusions of the Trial Judge
[80] Based upon this evidence, the trial judge found that the respondent was “anxious to have his trial completed as soon as reasonable given his job security concerns,” and thus “experienced some actual prejudice to his security interests” that was “not insignificant.” Citing R. v. Tran, at para. 64, the trial judge concluded that this “significant, actual prejudice” to the respondent supported a “deviation toward the lower end of the eight to ten month guideline” in the present case. The trial judge concluded that even in the absence of any Crown delay, “the delay in this case due to actual prejudice and the risk of prejudice required that this trial be heard in a range closer to eight months than ten months.” See: Trial Reasons, at paras. 4-6, 22, 34, 48-52, 64-66. I disagree with this analysis.
5. The Accused Suffered No Significant Prejudice to His Charter Interests
[81] In my view, on the evidence in this case, the factual conclusion that the accused suffered “significant, actual prejudice” or the real risk of prejudice to any of his s. 11(b) Charter interests is a palpable and overriding error on the part of the trial judge. This conclusion simply does not enjoy the support of the evidence. In my opinion, the only reasonable factual conclusion that can be drawn on the evidence is that the respondent suffered slight prejudice to his security interests, and no discernible prejudice to either his liberty or his fair trial interests.
[82] As Cory J. stated in R. v. Askov, at p. 1219, it must be “exquisite agony” for an accused awaiting trial to be denied the opportunity of demonstrating their innocence for an “unconscionable time as a result of unreasonable delays.” Accordingly, one of the purposes of s. 11(b) of the Charter is to provide protection against “overlong subjection to the vexations and vicissitudes of a pending criminal accusation,” and minimize the “stigmatization, loss of privacy, and stress and anxiety created by criminal proceedings.” See: R. v. K.(A.) and V.(A.), at para. 172; R. v. Morin, at pp. 778, 786, 802-803. In the circumstances of the present case, the worry and stress over the potential outcome of the pending criminal charges is the only discernible prejudice that the respondent has suffered. Moreover, unlike R. v. Askov, where the total delay was close to three years in duration, in the present case, the respondent has only experienced this anxiety for a total period of 15 months.
E. The Final Balancing Assessment
1. Introduction – The Important Balancing Process
[83] Finally, the constitutional analysis under s. 11(b) of the Charter requires a balancing of both the individual and societal interests sought to be protected by s. 11(b) of the Charter, together with an understanding of the total length of the delay and the causes of that delay. See: R. v. Morin, at p. 787; R. v. Batte, at paras. 86-87; R. v. Qureshi, at paras. 10, 41; R v. Seegmiller (2004), 2004 46219 (ON CA), 191 C.C.C. (3d) 347 (Ont.C.A.) at paras. 21-25; R. v. K.(A.) and V.(A.), at paras. 184-197; R. v. Kovacs-Tatar, at paras. 57-58; R. v. Bains, 2010 BCCA 178, 254 C.C.C. (3d) 170, at paras. 40-41, 66; R. v. Thomson, 2009 ONCA 771, 248 C.C.C. (3d) 477, at para. 25; R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at para. 31. As McLachlin J., as she then was, stated, in her concurring judgment in R. v. Morin, at pp. 809-810:
It is easy, in considering the factors which can bear on that determination, to lose sight of the true issue at stake – the determination of where the line should be drawn between conflicting interests. On the one hand stands the interest of society in bringing those accused of crimes to trial, of calling them to account before the law for their conduct. It is an understatement to say that this is a fundamental and important interest. Even the earliest and most primitive of societies insisted that the law bring to justice those accused of crimes. When those charged with criminal conduct are not called to account before the law, the administration of justice suffers. Victims conclude that justice has not been done and the public feels apprehension that the law may not be adequately discharging the most fundamental of its tasks.
On the other side of the balance stands the right of a person charged with an offence to be tried within a reasonable time. When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.
The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing 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.
[emphasis added]
2. The Balancing Assessment in the Present Case
[84] With respect, in my opinion the trial judge erred in failing to properly evaluate and balance the various competing interests inherent in this application under s. 11(b) of the Charter of Rights. In his Reasons, the trial judge mentioned, in his outline of the positions advanced by the parties, that the Crown had argued that the accused has suffered “minimal” prejudice and that the “societal interest in prosecuting this case on its merits outweighed any prejudice experienced” by the respondent. The trial judge also mentioned, in his recitation of the law, that the determination of whether s. 11(b) of the Charter has been infringed requires the court to balance society’s interest in law enforcement and the fair treatment of accused persons against the length of the delay and the reasons for it. See: Trial Reasons, at paras. 34-35, 37. However, in his final analysis of this case, in the last paragraph of his reasons, at para. 67, the trial judge said only this in relation to this critical balancing assessment.
Having considered all the constituent elements of the delay in this case, the cause of the delay, the interest that s. 11(b) is designed to protect, the prejudice and the societal interest in having this matter proceed to trial, I find that, on balance, that the delay was unreasonable in all the circumstances. Accordingly, I stayed the proceeding pursuant to s. 24(1) of the Charter for a breach of s. 11(b).
[85] I reach the opposite conclusion. Indeed, I have no doubt that the very substantial interest that society has in seeing alleged drinking and driving offences tried on their merits substantially outweighs the interest of the respondent and society in a prompt trial in the circumstances of this particular case.
[86] The respondent is charged criminally with impaired driving and refusing to provide samples of his breath, and with the provincial offence of failing to stop at a red light. There is a significant public interest in a trial on the merits in this case. There is no gainsaying the clear and often tragic consequences caused by drinking and driving, which continues to be one of Ontario’s most significant road safety issues. Indeed, according to the Ontario Ministry of Transportation (See: http://www.mto.gov.on.ca/english/safety/impaired/fact-sheet.shtml):
During the past decade, more than 2,000 lives have been lost and more than 50,000 people have sustained injuries in collisions involving a drinking driver. Drunk driving accounts for almost 25% of all fatalities on Ontario’s roads.
The financial cost to society of drinking and driving is estimated to be at least $3 billion annually through added costs for health care, emergency response and property damage.
About 17,000 drivers are convicted each year of Criminal Code offences including impaired driving, driving with a blood alcohol level greater than .08, criminal negligence causing bodily harm or death, manslaughter, dangerous driving and failing to remain at the scene of an accident. It is estimated that approximately three quarters of those convictions are related to drinking and driving.
[87] The overall delay in this case has not been lengthy, and the respondent has suffered only slight prejudice as a result of this delay. For a total of only 15 months, the respondent has been worried and anxious about the pending charges and the potential impact of a conviction on his future employment. Although the respondent’s memory of the relevant events is not as good now as it was at the time of his arrest, he has timely notes to help him refresh his memory. It is difficult to imagine many cases with a delay as short as that experienced in this case, and an accused who suffered less prejudice as a result of the delay.
F. The Supporting Authorities
[88] It is important to recall that in R. v. Morin, the Supreme Court of Canada not only clarified and settled the legal analysis that governed applications under s. 11(b) of the Charter, but the court also resolved the application of that analysis in a factual scenario remarkably similar to the circumstances of the present in case. Darlene Morin had been similarly arrested and charged with the drinking and driving offences of impaired driving and operating a motor vehicle with an excessive blood-alcohol level. Ms. Morin had similarly been released on a promise to appear prior to trial. The main delay in the trial was caused by a significant period of institutional delay. In the result, the majority of the Supreme Court of Canada held that the total delay of 14½ months (just two weeks shy of the total delay in the present case) was not an unreasonable delay in violation of s. 11(b) of the Charter. In the absence of some clearly distinguishing factual circumstance, this leading and binding Supreme Court of Canada precedent virtually controls the outcome of this appeal.
[89] This is especially so when one recalls, as Code J. accurately noted in R. v. Lahiry, at para. 158, that the drinking and driving charges in R. v. Morin were truly “routine,” in that on her trial date in 1989, after the s. 11(b) Charter application was dismissed, the Crown called the arresting officer and the breathalyzer technician and filed only one exhibit (ie. the certificate of analysis). The accused called no defence evidence. The trial evidence was “brief” and extended over only 38 pages of transcript. As Code J. noted in Lahiry, the entire case, including the s. 11(b) application, “must have taken no more than an hour, or two hours at the most.” See also: R. v. Morin (1990), 1990 10952 (ON CA), 55 C.C.C. (3d) 209 (Ont.C.A.) at pp. 217-218. In contrast, in the present case the judicial pre-trial conference was mandatory because it was estimated that, even without the s. 11(b) Charter application that was ultimately launched by the respondent, the trial would consume more than a full day of court time.
[90] More recently, in R. v. Lahiry, Code J. dealt with four summary conviction appeals by the Crown in drinking and driving cases where four different judges of the Ontario Court of Justice had stayed the proceedings due to perceived violations of s. 11(b) of the Charter of Rights. In those cases the total periods of delay extended from 13 months (Lahiry and Shelson) to over 18 months (Davidson), to some two and one-half years (Carreira). In all four of these cases Code J. concluded that there had been no violation of s. 11(b) of the Charter, set aside the stay of proceedings and ordered a new trial. Without reviewing each of the four cases in detail, it is fair to observe that some of them had important factual features in common with the present case.
[91] For example, in R. v. Lahiry, the accused suffered similar prejudice, in that he did not suggest any prejudice to his liberty or fair trial interests, but his affidavit claimed substantial prejudice to his security of the person interest. More particularly, he claimed that he wanted his charges resolved quickly, and that he was worried, anxious, depressed, and had difficulty sleeping, and that the charges caused stress in his common law relationship and negatively affected his ability to accept employment opportunities abroad. Nevertheless, Code J. held that the 13 months of total delay, which included over nine months of systemic delay, did not result in a violation of s. 11(b) of the Charter. I view the conclusions reached by Code J. in each of those cases as generally supporting the conclusion that I have reached in this case.
[92] Importantly, in R. v. Lahiry, in the context of his consideration of the R. v. Carreira case, Code J. dealt with the failure of the trial judge to properly balance the societal interests in a trial on the merits in these types of cases. His comments, at para. 89, are equally apt in the present case:
It must be remembered that, for over twenty-five years now, drinking and driving has been regarded as a very serious offence. Indeed, it has been authoritatively stated that “it has a far greater impact on Canadian society than any other crime”, that it is “clearly the crime which causes the most significant social loss to the country”, and that “every drinking driver is a potential killer”. See: R. v. Bernshaw (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193 at para. 16 (S.C.C.); R. v. McVeigh (1985), 1985 115 (ON CA), 22 C.C.C. (3d) 145 at 150 (Ont.C.A.); R. v. Biancofiore (1997), 1997 3420 (ON CA), 119 C.C.C. (3d) 344 at paras. 19-23 (Ont.C.A.). Given these pronouncements, balancing the societal interest in a trial on the merits is particularly important in drinking and driving cases.
VI
Conclusion
[93] In my view, in the circumstances of the present case, there has been no violation of s. 11(b) of the Charter. The trial judge, with respect, erred in reaching the contrary conclusion.
[94] The total delay in this case was just over 15 months. The three month neutral intake phase of the case did not exceed the bounds of reasonableness. The seven week period which followed, to permit the parties to meet to discuss the case, is properly attributed to the inherent time requirements of the case. The further month that was necessary to accommodate the mandatory judicial pre-trial conference is also properly attributed to the inherent time requirements of the case. After allowing a further month for counsel to clear their respective professional calendars and prepare for trial, there was an eight and one-half month period of systemic delay. This period of systemic delay falls well within the established administrative guidelines for such delay in the Ontario Court of Justice. The respondent suffered slight prejudice to his security interests, and no discernible prejudice to either his liberty or his fair trial interests. Finally, the very substantial interest that society has in seeing alleged drinking and driving offences tried on their merits substantially outweighs the interest of the respondent and society in a prompt trial in this case.
[95] In the result, the Crown appeal is allowed, the stay of proceedings entered by the trial judge is set aside, and a new trial is ordered before a different judge of the Ontario Court of Justice. An order shall issue accordingly.
Kenneth L. Campbell J.
RELEASED: July 30, 2013
CITATION: R. v. Ignagni, 2013 ONSC 5030
COURT FILE NO.: 99/12
DATE: 2013-07-30
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
JOHN RICHARD IGNAGNI
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: July 30, 2013