CITATION: R. v. MacAulay, 2015 ONSC 2731 COURT FILE NO.: SC 28/14 DATE: 20150428
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen Appellant
– and –
Connor MacAulay Respondent
Kim Walker, for the Crown, Appellant David Gomes, for the Respondent
HEARD: March 11, 2015
r.f. goldstein j.
BACKGROUND
[1] On November 17, 2012 Mr. MacAulay participated in an all-day hockey tournament. He said in an affidavit on an application to stay proceedings that he injured his head while playing. He admitted in the affidavit that he drank about one beer per hour at a social event after the tournament. A tow-truck driver spotted Mr. MacAulay’s car later that evening while Mr. MacAualy was driving on Highway 401. Mr. MacAulay’s car swerved all over the highway and hit the guardrail. The tow truck driver called the police. The police pulled over Mr. MacAulay. He smelled of alcohol. A breath technician took samples of his breath. He had readings of 169 and 160 milligrams of alcohol in 100 millilitres of blood.
[2] Mr. MacAualy was charged with impaired driving and “over 80”. The information alleged that the offences took place on November 17, 2012. The information was sworn on December 20, 2012. On February 18, 2014 Madam Justice Shamai of the Ontario Court of Justice heard an application to stay proceedings. The defence argued that Mr. MacAulay’s right to a trial within a reasonable time had been breached. The trial judge agreed. She stayed the charges. With great respect, she erred in calculating the period of institutional delay. She also did not balance the interests in a trial on the merits with the interests in a trial within a reasonable time. For the reasons that follow the appeal is allowed and a new trial is ordered.
ISSUES AND ANALYSIS:
[3] A decision to impose a stay of proceedings for delay is reviewable on a standard of correctness: R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) at para. 71.
[4] There are three issues on this appeal:
(1) Did the trial judge err in finding that institutional delay exceeded the Morin guidelines?
(2) Were there special circumstances due to extraordinary prejudice?
(3) Did the trial judge fail to weigh society’s interest in trying the charges on the merits against Mr. MacAulay’s right to a trial within a reasonable time?
(a) Did the trial judge err in finding that institutional delay exceeded the Morin guidelines?
[5] The Supreme Court in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 at para. 54 suggested that the appropriate period of institutional delay in the Ontario Court of Justice is 8-10 months.
[6] The entire period of delay, 14 months, called for an explanation. The trial judge allocated 11 ½ months to institutional and Crown delay. Crown and defence agree that this number is incorrect. They disagree as to the extent of the error.
[7] Ms. Walker argues that a proper analysis yields a total institutional and Crown delay of 9 months, well within the Morin guidelines. Mr. Gomes argues that the period of institutional and Crown delay is 10 ½ months. He points to the fact that in determining whether the overall time period is reasonable, the Court should not engage in a mathematical formulation: Morin, at para. 31. He points to special prejudice. I will have more to say about that later.
[8] The disagreement of 1 ½ months between the Crown and the defence essentially comes down to the characterization of some portion (or all) of the following time periods:
• Delay to prepare for trial;
• Delay arising from the failure to finish the trial;
• Delay arising from the judge being double-booked.
[9] I will deal with each of these in turn.
[10] Delay to prepare for trial: As noted, the information was sworn on December 20, 2012. The trial date was set on February 13, 2013. The defence had earlier dates, but there is no suggestion that this intake period of 56 days was unreasonable. All agree that it was intake and therefore neutral. From that date to the first trial date of July 18, 2013 was 155 days. In her reasons the trial judge found that this entire period was institutional delay. That was clearly an error, as even Mr. Gomes, for Mr. MacAulay, agrees. The period of institutional delay does not run until the parties are ready for trial: Morin, at para. 47; R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187 at paras. 2, 27-29. The Crown argues that 60 days should be subtracted, since there was a Charter motion as well as the trial to prepare for. The defence argues that 30 days should be subtracted because the Charter motion was not complicated and the notice would have taken little time to prepare. I agree with the defence. The Charter motion was routine and not uncommon in an impaired case. There was nothing complex about it. The trial judge erred in this apportionment of delay but only 30 days should be subtracted from her 11 ½ month allocation.
[11] Failure to finish the trial: The trial did not commence on July 18, 2013 due to some late Crown disclosure. The trial then commenced on October 1, 2013 but did not finish. A new date of November 15 was obtained. The failure to finish had multiple causes. The case had to switch courtrooms due to noise. The new courtroom had problems with the audio-visual equipment. Most importantly, all counsel under-estimated the time required for trial. As the trial judge noted, and both counsel agree, even under optimal conditions the trial would not likely have finished in a day. A continuation date had to be obtained. The trial judge allocated all of this time to institutional delay. In my respectful view, this was an error. Where counsel have under-estimated the time required for trial, the ensuing delay is usually considered as part of the inherent time requirements of the case (and therefore neutral), at least partially: R. v. Qureshi (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453, [2004] O.J. No. 4711 at para. 27 (C.A.); R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331, [1996] O.J. No. 3175 (C.A.) at para. 27 (C.A.). The initial and subsequent time estimates were not grossly inadequate. Everyone agreed that another four hours were required. Under those circumstances, I agree with the trial judge to the extent that at least some of that time is institutional. I characterize the delay as 15 days neutral and 30 days institutional (recognizing that this estimate is somewhat arbitrary). Thus, another 15 days must be subtracted from the trial judge’s estimate.
[12] The double-booking: It quickly transpired that Mr. MacAulay was not available on November 15 due to a work commitment. Defense counsel moved swiftly to bring an adjournment request and correct the error but by then the next available date was December 11, 2013. On December 11, 2013, the trial did not continue. The trial judge was booked to hear an in-custody matter, although it appeared that there might have been some time available during the day. Crown counsel, however, believed that the trial would not proceed. He was ill. He did not appear. In submissions he indicated that had he known some time might be found he would have found a way to come in and finish the case. It is possible that at least some evidence would have been heard that day but the trial judge felt that the matter would still not be completed. The next day a new date of February 18, 2014 was set. The trial judge characterized the entire period from December 11, 2013 to February 18, 2014, 69 days, as institutional. Respectfully, this was also an error. As the Court of Appeal noted in Allen no case is an island. No case can demand resources at will. Furthermore, the illness of a witness or a judge is ordinarily considered as part of the inherent time requirements of the case: R. v. A.J.W., 2009 ONCA 661, 257 O.A.C. 11 at para. 35; R. v. Bailey, [1998] O.J. No. 2815 (Sup.Ct.) at paras. 27-31. There is no principled reason to distinguish between the illness of a witness, a judge, or counsel for the purpose of an 11(b) motion. At least some of this period is obviously neutral. I therefore subtract another 30 days from the trial judge’s estimate of institutional and Crown delay. (Again, a number that is perhaps somewhat arbitrary).
[13] I therefore respectfully find that the trial judge erred with respect to 2 ½ months of delay. She characterized this delay as institutional when it was neutral. The institutional delay in this case was, therefore, nine months – and, on a more generous interpretation of some periods, might even have been less. Nine months obviously falls squarely within the Morin guideline.
[14] Of course, that does not end the matter. A great deal of prejudice in a minor case may still not save a case that falls within the Morin guidelines: Morin at para. 53. In Lahiry at para. 8 my colleague Code J. stated that where the period of unjustified delay is close to the line, an accused person may lead evidence of unusual prejudice by reason of special circumstances. That brings me to the next issue.
(b) Were there special circumstances due to extraordinary prejudice?
[15] Mr. Gomes argues that the significant prejudice suffered by his client is such that even if the delay was 9 months, as the Crown argues, the prejudice and stress to Mr. MacAulay make the overall delay unreasonable. Mr. Gomes points to the fact that Mr. MacAulay moved quickly, and did what he could to press for early dates. He argues that Mr. MacAulay has suffered considerable prejudice due to his work situation. He points to his inability to obtain a security clearance, stress, and the financial burden of facing a trial.
[16] I respectfully disagree. The trial judge did not find the kind of prejudice to justify a shorter period of institutional delay. She evaluated Mr. MacAulay’s affidavit. She considered the prejudice arising out of the delay and said the following:
I take into account Mr. MacAulay’s assertion of his prejudice worked by the delay. In terms of the security clearance, again, I don’t place great weight on that. It seems to me to be pretty much akin to the stress which an individual has to endure as a result of pending charges and I don’t see it as a function of the extending time that we have been waiting to complete the trial. However, I do acknowledge that it makes it a slightly aggravated ordinary prejudice, if I could put it that way.
[17] There was an ample basis upon which the trial judge could make these observations. In my view she was correct, based on the record. There were no special circumstances.
(c) Did the trial judge fail to properly balance society’s interest in a trial on the merits with Mr. MacAulay’s right to a trial within a reasonable time?
[18] When considering the overall reasonableness of the delay, a trial judge must balance society’s interest in a trial on the merits with the interests of both society and the accused that trials be held within a reasonable time: Morin, at para. 30; Lahiry, at para. 89.
[19] The trial judge did not conduct this balancing exercise. There was nothing on the record to suggest that she considered whether exceeding the Morin guidelines in this case (which even on her calculation were exceeded by only 1 ½ months) was sufficient to outweigh the admittedly high societal interest in dealing with impaired driving cases.
[20] Mr. Gomes argues that it would be unfair to infer that the trial judge was unaware that there was an important societal interest in this case being prosecuted. He points to the fact that the trial judge heard submissions, took a recess, and came back and gave a detailed and lengthy analysis of the time periods. There is some merit in Mr. Gomes submission. Judges in the Ontario Court of Justice are under tremendous time pressures. There must be some leeway given to trial judges who are required to deliver oral reasons without the luxury of much time preparation. This particular experienced trial judge was able to put together detailed reasons in a short period of time.
[21] That said, I must disagree with Mr. Gomes. It was critical to engage in the balancing process when the institutional delay actually did fall within the Morin guidelines or even where, on the trial judge’s calculation, the delay fell only 1 ½ months outside the calculation. The trial judge said this:
Fourteen months, in any event, is outside the guidelines which we continue to adhere to as set out in the Morin case.
[22] Regrettably, it appears that by not carrying out this balancing process the trial judge treated the Morin guideline as something like a limitation period, which is an error of law: Morin at para. 52.
DISPOSITION
[23] The appeal is allowed and a new trial is ordered.
R.F. Goldstein J.
Released: April 28, 2015
CITATION: R. v. MacAulay, 2015 ONSC 2731 COURT FILE NO.: SC 28/14 DATE: 20150428
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen Appellant
– and –
Connor MacAulay Respondent
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.