ONTARIO

SUPERIOR COURT OF JUSTICE

LINDSAY COURT FILE NO.: 1420/09
DATE: 20130212

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Robert Laine

Applicant

Jennifer Broderick, for the Crown
Kevin Mitchell-Gill, for the Applicant

HEARD: February 5, 2013

gunsolus, j.

Background

[1] The applicant is scheduled for a trial commencing April 15, 2013, at the Superior Court of Justice in Lindsay, Ontario. He is charged with two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

[2] The alleged offence date was June 29th, 2009 and charges were laid on September 11th, 2009.

[3] The applicant brings this application for an order granting a stay of proceedings on the ground that he has suffered an infringement of his right to be tried within a reasonable time, contrary to section 11(b) of the Charter of Rights and Freedoms.

Facts

[4] The accused, who is 25 years of age, was the driver of a motor vehicle involved in the accident which is the subject of his charges. Two passengers, Shante Roberts and Jessica Luke, died as a result of the accident. Three other passengers were injured.

[5] The preliminary inquiry in the Ontario Court of Justice was conducted on January 24th, 26th and April 15th, and committal for trial in this court was rendered on June 30th, 2011. The original trial was set to commence on May 14th, 2012. All parties, according to counsel for the accused, were ready to proceed to trial on that date.

[6] On April 16th, 2012, the Crown served a Speed Determination Report, within the timelines required by section 657.3(3)(a) of the Criminal Code of Canada.

[7] The issue of the accused’s driving speed has always been an aspect of the Crown’s case. The report confirmed that the Crown would present evidence at the trial that the accused was driving in excess of the posted 80 km/hour speed limit, now estimated by this report to be somewhere in the range of 85 to 90 km/hour.

[8] Upon receipt of this report, defence counsel made a decision to pursue its own expert to address what the defence perceived to be an “inflated speed” set out in the report. It is defence counsel’s position that this report changed the case dramatically. It is the Crown’s position that the report did nothing more than confirm the Crown’s position as to the rate of speed.

[9] In the result, the May 14th, 2012 trial date was vacated to allow the defence to take steps that counsel then thought necessary to answer the disclosed report. Subsequently, the Crown requested that a Sgt. Muir review the speed determination report. By way of an email, Sgt. Muir confirmed that his review of the original report would indicate that it may well have been accurate. Sgt. Muir indicated that, in his opinion, the accused’s vehicle, at the time he lost control, may have been travelling between 98-102 km/hour in an 80 km/hour zone.

[10] After receiving a copy of the correspondence from Sgt. Muir (on August 9th, 2012), defence counsel determined that he need not pursue the hiring of an expert, as he now believed that the purported speed of the accused’s vehicle was within reasonable parameters and generally consistent with some of the eye witness’ evidence, as given at the preliminary inquiry.

[11] A large number of police and lay witnesses will, apparently, be giving evidence in the trial of this matter. The Crown submits that this is a legally and factually complex case, which involves many witnesses, collision reconstruction evidence, photographs and technical diagrams.

[12] It is the accused’s position that the overall delay from the alleged offence date to the trial date of April 15th, 2013 will be 46 months. The Crown believes that the overall delay in this matter is in fact 44 months from the laying of the information to the trial date of April 15th, 2013.[^1]

[13] I had asked counsel, prior to the hearing of this matter, to provide a common chronology upon which argument could occur. This did not occur, and neither counsel’s submissions accounted for the entire time period. As will be seen from these reasons, the fact that one must look at the entire time period and not simply apply a mathematical or administrative formula when determining and balancing the interests which section 11(b) is designed to protect in relation to factors, which either inevitably lead to delay or are otherwise the cause of delay,[^2] this unaccounted for time is of no consequence. The difference would appear to be the attempt by defence to allocate a number of months for the time period between the date of the accident and the laying of the actual charges which is contrary to R. v. Morin, supra.

The Law

[14] As stated above, a determination as to whether the right to a trial within a reasonable time has been denied, is not by the application of a mathematical or administrative formula, but rather by a judicial determination, balancing the interests which section 11(b) is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.

[15] Factors to be considered in analysing how long is too long are as follows:

(1) The length of the delay;

(2) Waiver of time periods;

(3) The reasons for the delay, including:

(a) Inherent time requirements of the case;

(b) Actions of the accused;

(c) Actions of the Crown;

(d) Limits on institutional resources; and

(e) Other reasons for delay;

(4) Prejudice to the accused.

[16] The “balancing” requires an examination of the length of the delay and its evaluation in light of all of the other factors. The period to be reviewed is the time elapsed from the date of the charge to the trial. The length of this period may be shortened by subtracting periods of delay that have been waived. The balance of the time period must then be considered, having regard to the interests section 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused, if any.

1. Length of the Delay

[17] This part of the inquiry should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for, unless the applicant is able to raise the issue of reasonableness of the period by reference to other factors, such as prejudice. In this case, the Crown has conceded that the total elapsed period of time meets the threshold test, permitting this court to undertake the inquiry.

2. Waiver of Time Periods

[18] For an accused to waive his or her rights under section 11(b), the waiver must be clear and unequivocal. In this case, a review of the many transcripts, do not disclose any waiver by Mr. Laine of his rights under section 11(b).

3. Reasons for the Delay

[19] As the principles of waiver do not apply in the case before me, I will have to consider the chronology of the passage of time and all other explanations for the delay. We know that some delay is inevitable, given that our courts have limited time resources; parties sometimes retain, fire and retain new counsel; there are bail procedures; pre-trial procedures; counsel for both Crown and Defence require time to prepare for each event. Even when the case is finally ready for trial, a judge, a courtroom, or support staff may not be available, resulting in institutional or systemic delay.

(a) Inherent Time Requirements

[20] The case before me is a complex case and thus it has taken counsel longer to prepare for trial and the trial is estimated to be one that will take at least two weeks to be heard. The alleged offences are complicated, from both a factual and legal perspective, and there will be a large number of lay and police witnesses. Counsel for the Crown and for the accused have not been able to devote their time exclusively to this case and have not been available, as early as one may have liked. This of course has been a two-stage trial process, involving a preliminary hearing, a number of pre-trial meetings and disclosure meetings. All of these factors are to be considered as perhaps causing inherent time delays.

(b) Actions of the Accused

[21] This is not an exercise of laying “blame”. The accused in this case did change solicitors and did re-elect to trial by judge alone and these are factors which contribute to delay and must be taken into consideration in determining whether the overall delay suffered by the accused was reasonable.

(c) Actions of the Crown

[22] As in the foregoing actions of the accused, consideration of this factor is not an exercise in assigning “blame”. An assigned Crown may not be available or disclosure may be delayed and again, these are factors that must be considered in determining whether the overall time period has been reasonable.

(d) Limits on Institutional Resources

[23] This is the period that starts to run when the parties are ready for trial, but otherwise the system cannot accommodate them. In this case, the accused has not been in custody and has not been subjected to overly restrictive bail terms or conditions; however, I will have more to say about this aspect when I review possible prejudice to the accused. There is no absolute precise legal or scientific formula that can be applied. Each case must be reviewed on its specific and unique facts.

[24] The institutional delay of approximately 9 months in this case, would not appear to exceed any acceptable guideline, including that set out in the Morin[^3] case.

(e) Other reasons for Delay

[25] No other reasons for delay other than those mentioned above were argued such that there are no other reasons that I am required to take into consideration in my analysis of this matter.

4. Prejudice to the accused

[26] Section 11(b) protects individuals, such as Mr. Laine, to their right to liberty, security of their person and their ability to make full answer and defence, resulting from unreasonable delay in bringing criminal trials to a conclusion. We may infer prejudice to individuals, such as Mr. Laine, based solely upon an unexplained, prolonged delay. In effect, the purpose of section 11(b) is to ensure the expedition of trial and the minimalization of prejudice, but certainly not to avoid trials being determined on their merits, after the hearing of a full evidentiary record. It is clearly the duty of the Crown to bring an accused to trial. Mr. Laine gave evidence which I will review later. It is upon his evidence that he is asking the court to find that he has suffered prejudice on the basis that his liberty has been affected; he has incurred the “ongoing stress, the vexations and vicissitudes of a pending criminal accusation” and thereby his ability to make full answer and defence has been affected.[^4]

Chronology of Events

[27] I am now going to undertake a review of the various timelines in light of the facts of this case and in particular, in light of the law as I have described. It is this law which I must keep in mind while reviewing and allocating the reason for delay in order to determine whether it should be allocated to the actions of the Crown; actions of the accused; whether it is inherent or neutral delay or finally, whether or not the delay must be attributed to a lack of institutional resources.

Date
Description
Allocation
Length of Delay

June 29, 2009 to September 11, 2009
Date of accident to date of charges
Not applicable (see R. v. Morin, supra, at para. 32. Time starts to run from date of the laying of charges)
0

September 11, 2009 to January 7, 2010
Initial Disclosure; bail hearing; meetings between prosecutor and defence, etc.
Inherent (see R. v. Morin, supra, at para. 42)
4 months

January 7, 2010 to January 25, 2010
Time period during which first judicial pre-trial (JPT) was scheduled
Institutional
0.75 months

January 25, 2010 to August 9, 2010
Time within which parties prepared for and conducted and scheduled and rescheduled JPTs
Inherent (See R. v. N.N.M., supra, at para. 33)

Inherent: 4.25 months
Crown: 1.5 months

August 9, 2010 to September 27, 2010
Accused dismisses counsel and retains new counsel. Dates set for preliminary hearing (January 21, 24 and 26, 2011)
Accused (See R. v. Morin, supra, at para. 45)
1.75 months

September 27, 2010 to January 21, 2011
Defence counsel declined the earliest dates offered by court (December 20, 23, 24, 2010)

Accused – for the difference to January 21, 24 and 26;

Accused: 2 months
Institutional: 2 months

January 21, 2011 to June 30, 2011
Time period within which additional preliminary hearing dates were added; extra day for evidence in preliminary hearing as both Crown and Defence underestimated the time required. Time required for preliminary hearing judge to render a decision on the committal (trial judge was available June 2, 2011. Defence was not available until June 30, 2011)

Inherent (See R. v. Allen, supra, at para. 27), Accused and Crown

Inherent : 3.25 months
Accused: 1 month
Crown: 1 month

June 30, 2011 to October 19, 2011
Superior Court Judicial Pre-trials set. Defence not available on first available dates.

Institutional (see R. v. Morin, supra, at para. 43)

3.5 months

October 19, 2011 to November 30, 2011
Judicial pre-trial held. Additional pre-trial date set in order to find a special trial date at request of defence counsel.

Inherent (see R. v. N.N.M., supra at para.33)

1.5 months

November 30, 2011 to May 7, 2012
Defence was offered 3 week block of trial time (as requested by defence) for any time the defence was available. Defence declined initial dates. Unavailable until May, 2012.

Accused

5.25 months

May 14, 2012 to October 10, 2012
Crown serves (in accordance with the Criminal Code requirements), speed determination report. Defence requests adjournment of trial in order to retain own expert. Ultimately, defence determines that such a report will not be required.

Further JPTs were requested by both counsel

Crown

5 months

October 10, 2012 to April 15, 2013
Defence were offered trial dates in November, December and January. Defence sought trial dates in February but no judge available for February. Trial to commence April 15, 2013.

Inherent
Accused
Institutional

Inherent – 1 month
Accused – 2 months
Institutional: 2.5 months

TOTALS (43.75 months)

Inherent: 14.5 months
Institutional: 8.75 months
Accused: 13 months
Crown: 7.5 months

[28] In addition to the above reasons as set out in the chronology itself, I now intend to apply the law and the time allocation set out above to further explain the reasoning for my decision in this matter.

Application of the Law and Time Allocation to this case

1. Length of Delay

[29] As set out in paragraph 17 above, the Crown has conceded that the delay in this case was sufficient to raise the issue of reasonableness and the inquiry was undertaken to determine the reason as to why it took the length of time it has to bring Mr. Laine to trial.

2. Waiver of time periods

[30] As set out in paragraph 18 above, I could not determine that the accused waived any of his rights at any time in relation to section 11(b).

3. The reasons for delay

(a) The inherent time requirements

[31] The accused was charged with two counts of criminal negligence causing death and one count of criminal negligence causing bodily injury. This is a complicated case involving many lay and police witnesses. The initial and ongoing disclosure; the scheduling and conducting of judicial pre-trials; the scheduling and conduct of the preliminary hearing; the scheduling and conduct of numerous judicial pre-trials in Superior Court resulted in delay being attributed to the inherent time requirements for a total of 14.5 months.[^5]

(b) Actions of the Accused

[32] At no time did the accused request the earliest of dates for the preliminary hearing, judicial pre-trials or trial dates. The accused terminated his original counsel. Dates were scheduled to accommodate the availability of defence counsel on numerous occasions. In the result, 13 months were attributed to the actions of the accused.[^6]

(c) Actions of the Crown

[33] The accused made it clear to the court that in no way was he suggesting that the Crown was in any way to “blame” for the length of time that this matter has taken from initial charges to scheduling of trial. He does, however, pinpoint the production of the Speed Determination report just over 30 days prior to the initial trial date as being a major cause for delay in this matter.

[34] However, a review of the transcript of the proceedings on April 30th, 2012 before the Honourable Justice B.G. MacDougall clearly shows that Crown counsel confirmed, on the record, that all the report did was confirm the Crown’s theory of the case. That was that the accused was driving at a rate of speed in excess of the posted speed limit. Indeed, once this was confirmed by counsel for the accused, he realized that he did not require an expert to counter this report. Counsel for the defence was able to rely upon this report as confirming the defence theory that the accused not driving at an outrageous rate of speed. Time allocated to the actions of the Crown was therefore 7.50 months.[^7]

(d) Limits on Institutional Resources

[35] I attributed 8.75 months to institutional delay in this matter.[^8] It is to be noted that on more than one occasion, the courts and Crown prosecutor were offering dates far earlier than defence counsel could accept. In fact, defence was offered “three weeks, any time”, however defence counsel was not available for a number of months, as set out in the chart, above. At no time was the defence turned down for earlier dates. The reason for the adjournment of the original May, 2012 trial would appear, in hindsight, to have been ill-conceived and not necessary. As stated above, Crown counsel confirmed, on the record, that speed has always been an issue in this case and that the maligned report simply confirmed the original speed estimates of some witnesses. The report did not change the tenor of any evidence. As defence counsel argued, if anything, it, may support the defence theory of the speed element.

[36] In the end, the delay of approximately 16 months attributed to institutional and Crown actions in the circumstances of this complicated case would not appear to be unreasonable. This is not a case as in R. v. Morin[^9] where the accused was demanding the earliest of possible trial dates. In this case, when offered earlier possible trial dates, defence counsel was committed to other trial proceedings in another jurisdiction and did not press for the earlier dates.

(e) Other causes of delay

[37] There do not appear to be any other reasons for delay in this case beyond those that I have already outlined. A view of the endorsements in this case would show that neither prosecution nor defence sought any frivolous adjournments. A review of the transcripts of each court appearance in this matter discloses that the issue of delay was never raised until October 10th, 2012, when the current trial dates were established. As stated above, the defence was offered earlier dates in the previous year, however, declined those dates for various reasons. This is not a case where the court has before it the basis for an automatic stay of these proceedings. The time delay is not out of the reasonable to the extreme.[^10]

[38] The record does not disclose that the defence was pushing for, or seeking, an earlier trial date. Indeed, the defence did not take advantage of earlier trial dates offered. If anything, the record discloses that counsel for both the prosecution and the defence have acted in a very courteous and professional manner and have moved this matter forward, in its tragic circumstances, within an acceptable time period.

4. Prejudice to the accused

[39] As I have already stated, this is not a case, such as in Godin, where the delay is of such a length that prejudice is to be inferred.[^11] Robert Laine gave evidence as to his perception of prejudice caused to him by the delay in his matter getting to trial.

[40] On this issue, the question that must be answered is how the delay in the process caused prejudice to the accused, if any? Mr. Laine advised the court that the terms of his bail required him:

(a) To live with his father;

(b) Prevented him from driving without his father present in the vehicle with him (his father was his surety);

(c) Prevented him from communicating with those who were in his motor vehicle at the time of the accident; and

(d) Affected his freedom and security of his person.

[41] Under cross-examination however, he had to acknowledge living with his father was not an issue. In fact, he acknowledged that he had been living with his father, his mother and his brother and was “kind of all over the place”. He could communicate with those who were in his motor vehicle through counsel in order to assist in preparation for trial and there were other means of transportation available to him, including public transit, an electric bike and so on. He further acknowledged that he did not cause a bail review to be brought forward to vary any of the terms of these conditions of his release.

[42] Next, Mr. Laine advised the court that he had been precluded from attending Shante Roberts’ funeral (Shante perished in the accident and was his girlfriend of some 8 or 9 months). Yet under questioning, he acknowledged that her funeral occurred before he was charged.

[43] He indicated that he didn’t feel he could attend this funeral because he felt he was being “villanized”. He had heard the parents of the victims were threatening to kill him and he claimed to have seen upsetting items in the media. Again, this occurred before charges were laid, according to his evidence.

[44] None of the foregoing can be attributed to delay in this matter.

[45] Further, Mr. Laine indicated that he was being made out to be the bad guy and the villain in the media. The court was provided no evidence of specific instances. Again, his evidence related to the early stages of this matter and could not be considered a prejudice caused by a delay in this matter.

[46] Mr. Laine described when he received a telephone call from the investigating officer during a lunch hour at his place of employment. He advised that the officer told him what he would be charged with and requested that he attend on a future date to be arrested and processed. He also acknowledged that the officer told him to bring his father as a surety, as the Crown would be consenting to his release with his father as his surety. Again, this cannot be attributed to any alleged delay in this matter and further, all of the foregoing could well be described as being what any average person would endure as a result of being charged with a matter of this nature.

[47] Mr. Laine described a circumstance of “vigilante justice” where a former boyfriend of one of the victims of the motor vehicle accident stabbed and nicked him with an Exacto knife. This apparently occurred on the Toronto subway system at approximately 2:00 am on either November 13th or 14th, 2009. This individual is not a witness in this matter. The occurrence was approximately one month after charges were laid and again, cannot be described as a contributing factor resulting in prejudice to Mr. Laine as a result of any delay in this matter.

[48] Under questioning, Mr. Laine also acknowledged that he had been advised that, as a result of the above-described incident, special security had been created for all of his future court appearances.

[49] Further, the court was advised by Mr. Laine of the tragic, sudden death of his father on the 11th of January, 2013. Mr. Laine advised the court that his father had taken care of everything in relation to these criminal proceedings. He further indicated that his father intended to give evidence as to the fitness of the vehicle that Mr. Laine was driving and in relation to the conditions of the road where the accident occurred. Mr. Laine acknowledged under questioning that other witnesses are available on these issues. He acknowledged that he himself would be able to give evidence in relation to the conditions of the road and the mechanical fitness of the motor vehicle in question. Although the loss of his father is no doubt devastating to Mr. Laine, the event was “sudden and unexpected” and not attributable to the delay in this matter. As Crown counsel observed, this was not a circumstance where Mr. Laine’s father was terminally ill, such that the passage of time – delay – prevented him from being a witness for his son. Everyone acknowledges that the loss of Mr. Laine’s father has, as he put it “put a lot more weight on my shoulders”, however, this cannot be seen as a prejudicial factor attributed to any delay in this matter.

[50] Mr. Laine gave evidence that he had retained his first lawyer at a cost of some $20,000. He indicates now that he didn’t feel that he got value for his money, as “nothing seemed to be happening”. He did acknowledge under questioning that his first counsel took a number of steps, including the obtaining of substantial disclosure, preparation work and court attendances. The court did not hear that his first lawyers’ efforts had to be duplicated in any way, nor did the court hear evidence that would cause it to believe that his first counsel caused delay or that his first counsel’s efforts were anything less than appropriate and professional.

[51] Mr. Laine described the fact that he is subject to driving restrictions as a result of the terms of his release, pending the trial of this matter, as being a problem for him. He has been required to use public transit and even an electric bike in inclement weather, including snow, ice and heavy rains. However, under questioning, he could not indicate that his ability to be employed has been in any way affected. Indeed, he was unable to continue with his $12.00 per hour warehouse job that he held, due to the back injury that he sustained as a result of the motor vehicle accident. He still carries on his promotional work in relation to downtown Toronto night clubs. He is able to earn as much as he wishes, provided it does not exceed $10,000, as apparently then he would become ineligible for Legal Aid. The court heard no evidence as to how the delay in this matter and the driving restrictions that continue to be imposed upon Mr. Laine had in any way prejudiced the conduct of this matter, let alone the ability of Mr. Laine to get on with his life. The court also heard that Mr. Laine has still not completed his G2 licence, even though the terms of his bail were varied to permit him to do so on May 13th, 2011. He advised the court that he now is scheduled to take the test at the end of this month.

[52] Although Mr. Laine gave evidence that it had been his hope to someday attend Durham College, he did acknowledge that he graduated from high school two years prior to the accident in question. He admitted that he did not really feel ready to attend post-secondary school. Although he had looked into it, he had never applied and he admitted that finances contributed greatly to his decision not to apply to attend college.

[53] Mr. Laine indicated that he attended with a psychologist at one point, but could give no detail as to who that person was, nor could he remember anything about the appointment.

[54] Mr. Laine acknowledges that he has absolutely no lapse in relation to his memory of the accident, and indeed acknowledges that he remembers the details very well. He did say that some things post-accident require prompting for him to be able to recall.

[55] While Mr. Laine had indicated that his life had been “on a complete pause” as a result of these charges, it would appear that Mr. Laine’s life is exactly as it was before the accident. I am not satisfied that the delay in this matter has in any way prejudiced Mr. Laine in that regard, nor in his ability, along with the assistance of his counsel, to present a full and vigorous defence.

Disposition

[56] Applying the facts to the law and taking into account all the reasons for delay in this matter and the apparent absence of any risk of, or substantial significant prejudice in this matter, I am of the opinion that the delay in this case, to date, has not been unreasonable.

[57] I also note that the court has to be cognizant of society’s interest in having this matter determined after a full evidentiary record has been presented. The charges in this matter are extremely serious. The consequences of the events that resulted in these charges are tragic. Two young people perished. Others were apparently injured.

[58] I am satisfied that Mr. Laine has been and will be able to put forward a full answer and defence. It is in the interests of the community and Mr. Laine that these charges be determined on the evidence and in accordance with the principles of law that protect an accused such as Mr. Laine.

[59] As the Ontario Court of Appeal stated in R. v. Kovacs-Tatar:

The interests involved do not just include the accused’s liberty and security interests and his or her interest in a fair trial. There are societal interests in ensuring that an accused is tried within a reasonable time, to minimize the prejudice to accused and ensure they are treated humanely and fairly. But, there is also a societal interest in ensuring that accused are tried on their merits. As Sopinka, J. said in Morin, “As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial.”[^12]

[60] For all the foregoing reasons, the application is dismissed. The trial of this matter is scheduled to commence at 9:30 am on April 15th, 2013, in the Superior Court, at Lindsay, Ontario.

“Mr. Justice D.S. Gunsolus”

Released: February 12, 2013

[^1]: See R. v. Morin, 1992 SCC, [1992] S.C.J. 25 (S.C.C.) para 32; also see R. v. Kalanj, 1989 SCC, [1989] 1 S.C.R. 1594
[^2]: See: R. v. Godin, 2009 SCC 26, [2009] 2 SCR 3 , at page 9
[^3]: See Morin, supra.
[^4]: My determination of “the law” applicable to this matter is based upon a review of the following cases: R. v. Morin, supra; R. v. Allen, 1996 ONCA; affirmed: 1997 SCC; R. v. N.N.M., 2006 ONCA; R. v. Kovacs-Tatar, 2004 ONCA; R. v. Godin, supra
[^5]: See Chronology, above.
[^6]: See Chronology, above
[^7]: See Chronology, above
[^8]: See Chronology, above
[^9]: See Morin, supra
[^10]: See R. v. Kovacs-Tatar, supra
[^11]: In Godin there was a 30 month delay.
[^12]: See R. v. Kovacs-Tatar, supra, at para. 58.