ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR130000001100AP
DATE: 20131025

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PAUL MURPHY

Respondent

Kim Walker, for the Crown/Appellant

Alan D. Gold, for the Respondent

HEARD: September 16, 2013

B. P. O’marra j.

judgment

overview

[1] On January 31, 2012 the respondent was charged with Impaired Operation and Over 80 contrary to s. 253 of the Criminal Code. He was released on a promise to appear with a first appearance date of March 13, 2012. On April 18, 2012 a trial date was set for February 6, 2013.

[2] On January 16, 2013, Justice S. F. Clements of the Ontario Court ruled on an application under s. 11(b) of the Charter. He assessed the total institutional and Crown delay in this case at ten months and five days and entered a judicial stay.

[3] The Crown appeals that ruling.

the chronology

January 31, 2012 - Charges laid and respondent released on a promise to appear with a first appearance of March 13, 2012.

February 6, 2012 - Information sworn.

March 13, 2012 - Student-at-law of counsel attends and files a Designation. Initial disclosure package provided to student. Further disclosure outstanding and student requests adjournment to March 28, 2013.

March 28, 2013 - Further disclosure outstanding. Crown submits there is sufficient disclosure for a pretrial conference. Student agent agrees and suggests three week adjournment to arrange pretrial conference with the Crown. On consent adjourned to April 18, 2013.

April 17, 2012 - Crown pretrial conference held.

April 18, 2012 - Further disclosure outstanding but student agent and Crown agree there was sufficient disclosure to set a trial date. Student agent advised the Court that the defence was unable to specify potential Charter motions or whether an expert would be called until disclosure was completed. Trial date set for February 6, 2013.

Student agent initially suggested a two week adjournment for disclosure but later agreed to set the trial date and await further disclosure.

April 19, 2012 - Counsel for the respondent faxed a letter to the Crown indicating there was substantial disclosure still outstanding. He also advised that he had many earlier available dates beginning as early as the next week.

December 10, 2012 - Submissions on s. 11(b) motion. Respondent’s counsel acknowledged that disclosure was completed by December 5, 2012.

January 16, 2013 – Charges stayed pursuant to s. 11(b).

the trial ruling

[4] The Crown agreed that the total delay of 372 days from arrest to trial warranted an examination. No waivers of time periods were alleged.

[5] The Court assessed the time periods as follows:

From date of arrest to setting of trial date was 79 days. From date the Information was sworn to setting the trial date was 72 days. A reasonable intake period should have been no more than two months.
The time from March 28, 2012 to April 18, 2012 (when trial date set) of 22 days is Crown delay.
The time between April 18, 2012 and the trial date was nine months and 20 days.
Counsel for the respondent would have been able to proceed to trial within seven days of setting the trial date had he been provided with complete disclosure. By deducting those seven days the institutional delay was nine months and 13 days.
The Court combined 22 days Crown delay with the institutional delay for a total of ten months and five days.
The Court found that the appropriate period for this case to come to trial was eight months as opposed to ten months. This was based significantly on what the trial judge described as “suffering the unnecessary consequence of having counsel attend on five occasions to monitor the outstanding disclosure issues.” This was viewed as very prejudicial to the security interests protected by s. 11(b).

Section 11(b) of the Charter

The General Analytical Framework

[6] 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 Supreme Court of Canada in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, at pp. 787-803, held 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.

[7] 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.

The Length of the Delay

[8] 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.

[9] 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; R. v. Nguyen 2013 ONCA 169 at para. 17.

conclusion

[40] The proper assessment of systemic delay in this case being less than ten months falls well within the established administrative guidelines for such delay in the Ontario Court of Justice. The alleged prejudice to the respondent’s security interests was given inordinate significance by the trial judge. There was no discernible prejudice to the liberty or fair trial interests. 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.

result

[41] The Crown appeal is allowed. The stay of proceedings is set aside and a new trial is ordered before a different judge of the Ontario Court of Justice.

B. P. O’Marra J.

Released: October 25, 2013