ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
CITATION: R. v. Nelson, 2015 ONSC 3045
COURT FILE NO.: 172/13
DATE: 20150512
B E T W E E N:
HER MAJESTY THE QUEEN
A. Khoorshed, for the Respondent
Respondent
- and -
CONSTANCE NELSON
D. Burke, for the Appellant
Appellant
HEARD: April 8, 2015 at Milton
REASONS FOR JUDGMENT
[On appeal from the judgment of Forsythe J.
dated October 30, 2013]
André J.
[1] Ms. Nelson appeals the trial judge’s decision to dismiss her s. 11(b) applications on the ground that he misconstrued the reasons for the delay in bringing the matter to trial.
[2] The appeal therefore raises the following issue: Did the trial judge err in law by attributing a significant portion of the delay in bringing the matter to trial to the inherent time requirements of the case?
Background Facts
[3] The Appellant was arrested and charged on December 11, 2011 with impaired driving and excess blood alcohol. She was ordered to appear before the court on January 9, 2012. Less than one month later, a trial date was scheduled for December 6, 2012. This was the first date available to the court. Counsel for the Appellant, not counsel on this appeal, indicated through his agent that he had earlier available dates but did not elaborate further.
[4] On December 6, 2012, the trial commenced at 12:00 midday. The evidence could not be completed on that date and a continuation date was obtained for February 28, 2013.
[5] As a result of the matter requiring additional time, the Appellant brought an application under s. 11(b) of the Canadian Charter of Rights and Freedoms, which was heard on February 28, 2013. The application was dismissed orally with reasons to follow.
[6] As a result of the s. 11(b) application being argued, the trial did not conclude on February 28, 2013. The matter was adjourned to June 10, 2013.
[7] On June 10, 2013, the Appellant brought another s. 11(b) application. The trial judge dismissed the application with reasons to follow.
[8] This matter finally concluded on December 4, 2013 with the release of the reasons for dismissing the s. 11(b) applications and the reasons on the trial proper. In the final analysis, this matter was before the court for a period of just less than two years.
[9] The trial judge convicted the Appellant of the offence of “over 80”. Defence counsel conceded that the Crown had established the offence beyond a reasonable doubt. Ms. Nelson was acquitted, however, of the offence of impaired driving.
Trial Judge’s Decision on the s. 11(b) Application
[10] Ms. Nelson brought two separate s. 11(b) applications, the first on February 28, 2013.
February 28, 2013 s. 11(b) Application
[11] In this application the trial judge concluded that the total delay in the case was 14 ½ months; a delay which necessitated an analysis under s. 11(b) of the Canadian Charter of Rights and Freedoms. The judge concluded that Ms. Nelson had not waived her s. 11(b) rights, neither had she delayed the proceedings.
[12] Ms. Nelson’s trial counsel submitted that the delay period from February 6, 2012 to December 6, 2012 constituted institutional delay which exceeded the 8-month administrative guideline established by the Supreme Court of Canada in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, for an uncomplicated drinking and driving case. The trial judge demurred. He held that this institutional delay period should be reduced by a further two months, given that the institutional delay clock should only commence when defence and the Crown are ready for a trial. The trial judge noted at page 8 of his decision:
I agree with the Crown’s argument that the February 6, 2012 transcript contained no information whatsoever with respect to the trial readiness period for Mr. Rombis. Following the principles of R. v. Lahiry, 2011 ONSC 6780 and R. v. Tran, supra, I find that I must assess an arbitrary portion of that period of 10 months for the assumed period of time that would have been required by Mr. Rombis to be absolutely ready to conduct this trial after February 6, 2012. I would have been inclined to assess a period of three-months to that category but since the Crown has invited me to consider a period of only two months, I will do so. Therefore, I find that the total systemic or institutional delay…to be eight months, which I find to be in the permissible range enunciated by the S.C.C. in Morin.
[13] The trial judge then concluded that absent evidence of any actual prejudice, the 8 month institutional delay in the case did not violate Ms. Nelson’s s. 11(b) rights.
[14] On June 10, 2013 Ms. Nelson renewed her s. 11(b) application in light of the adjournment of the trial. In dismissing this second application the trial judge noted that:
I am, therefore, prepared to find that the total institutional delay between February 28 and June 10 was effectively six weeks or, at the worst, two months. I find that in the context of the totality of the circumstances of the progression of this case through this court, as outlined in my previous ruling involving the February 28 s. 11(b) application and the consideration of the alleged actual prejudice…Ms. Nelson’s s. 11(b) Charter right to a trial within a reasonable period of time was not breached by virtue of the delay between February 28 and June 10, 2013.
Analysis
[15] Before analyzing the trial judge’s decision, it is necessary to briefly summarize the applicable legal principles in this case.
[16] The standard of review for errors in relation to legal conclusions is one of correctness. The underlying factual findings can only be reviewed on the standard of palpable and overriding error: R. v. Schertzer et al. (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 (Ont. C.A.), at para. 71.
[17] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable period.
[18] Section 24(1) of the Charter provides that anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedies as the court considers appropriate and just in the circumstances.
[19] In determining whether or not an accused’s s. 11(b) rights have been infringed the court must first examine the overall length of delay from the date when the person was charged to determine whether the delay period is sufficiently long to justify an inquiry about the reasonableness or lack thereof of the delay.
[20] To determine whether or not an accused’s s. 11(b) rights have been infringed, the court must balance the following factors:
(1) The length of the delay;
(2) The reasons for the delay;
(3) Waiver of any time periods; and
(4) Prejudice to the accused.
R. v. Smith (1989), 1989 CanLII 12 (SCC), 52 C.C.C. (3d) 97 (S.C.C.); R. v. Askov (1990), 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.)
[21] Institutional delay is the period of time which the criminal justice system requires to be able to accommodate a trial of the accused. Institutional delay commences from the earliest available trial dates of the Crown and defence rather than from the date on which the trial date is set. R. v. Lahiry, 2011 ONSC 6780, at para. 22.
[22] The constitutionally tolerable period of institutional delay for a relatively uncomplicated drinking and driving case is 8 months. This period is merely an administrative guideline; one which can be extended upwards or downwards given the absence or presence of actual prejudice. R. v. Morin; R. v. Meisner.
[23] There is a societal interest in ensuring that serious criminal matters are adjudicated on their merits. R. v. Morin, at pages 12-13; R. v. Seegmiller (2004), 191 C.C.C. (3d) (Ont. C.A.) at paras. 21-25.
Application of the Law to the Facts
[24] The Appellant submits that the trial judge erred in “arbitrarily assigning a period of two months” for trial preparation of this case and that an appropriate period would have been one month. The Appellant further submits that this was a straightforward case without any pretrial applications and that it was “untenable then to suggest that defence counsel required a period of two months in order to be ready to conduct the trial”.
[25] In my view, the trial judge’s decision to ascribe a period of two months for trial preparation does not constitute reversible error in this case. The Appellant appears to have misconstrued the meaning of “trial preparation” as utilized by the court in Lahiry. The phrase does not merely imply reviewing the Crown’s disclosure prior to a trial. As noted by the Ontario Court of Appeal in R. v. Tran, 2012 ONCA 18, at para. 32:
Second, parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel required time to clear their schedule so they can be available for a hearing as well as time to prepare for the hearing.
[26] Trial preparation also involves the time required to subpoena and interview witnesses and the time required to file any pretrial applications in a timely manner.
[27] Considering these factors, it was reasonable for the trial judge to decide that the defence would not have been available for trial for at least two months after the trial date was set. Indeed, there is no evidence that the Appellant offered any trial dates earlier than the December 6, 2012, the date offered by the court.
[28] The Appellant bears the burden of proving, on a balance of probabilities, that her rights under s. 11(b) of the Charter have been infringed. The Appellant therefore has the evidentiary burden of establishing how soon she was available for trial when setting a trial date on February 6, 2012.
[29] Significantly however, the Appellant’s trial counsel submitted to the trial judge on February 6, 2012 that two months of the delay period between February and December 2012 should be regarded as neutral delay, neither attributable to the Crown or to the defence. The trial judge then proceeded to deduct two months from the delay period in accordance with the submission of the Appellant’s trial lawyer.
[30] I remind myself that the standard of review of this appeal is one of correctness. The trial judge did not err in law when he concluded that institutional delay begins to run only when counsel are ready to proceed with a trial but the court is unable to accommodate them. Second, the trial judge was correct in his conclusion that counsel were not ready for a trial until at least two months after February 6, 2012.
Second 11(b) Application
[31] The trial judge concluded that the total institutional delay between February 28 and June 10, 2013 was six weeks or at worst two months. He concluded that given “the totality of the circumstances of the progression of this case through the court”, the Appellant’s s. 11(b) rights were not infringed.
[32] In assessing the correctness of this decision, I am reminded by the Court of Appeal’s observation in Tran, at para. 48 that:
Judges should be cautious about engaging in a minute analysis of the normal vicissitudes of a trial for the purpose of allocating delay to the Crown or to the defence on section 11(b) Charter applications – for example, the need to pause to consider unforeseen developments during the trial, the customary requirement to juggle the lineup and availability of witnesses, insignificant administrative glitches or early adjournments. Except in rare cases where unreasonable delay arising from such issues can readily be attributed to one side or the other or to the court system. I would think the delays arise from these sorts of factors during the normal evolution of a trial would be part of the inherent time requirements of the case.
[33] Ms. Nelson submits that the trial had to be adjourned on December 6, 2012 because it only commenced at 12:00 midday. On February 28, 2013, the trial judge dismissed her first 11(b) application and dismissed the second 11(b) application on July 31, 2013.
[34] In analyzing the adjournment of the trial from December 5, 2012 to June 13, 2013, the following observations can be made. First, the criminal justice system in the Ontario Court of Justice, particularly in busy jurisdictions such as Halton Region, does not operate on a system of trial by appointment. If a matter is set for trial at 10:00 a.m. on a given day, there is no expectation that the trial will commence at that time. It is reasonable to expect that there would be a few brief matters on the court’s docket to be dealt with before the court embarks on a trial scheduled for one day. This is not necessarily an ideal situation but one which is typical in a busy jurisdiction.
[35] Second, the trial judge found that the trial would not have been completed even if it had commenced at 10:00 a.m. This suggests that both parties may have underestimated the length of trial. This is not surprising given that estimating the length of trial is not an exact science and that neither the Crown nor the defence can predict the exigencies that may arise during a trial.
[36] The trial was not concluded on February 28, 2013 partly because of the s. 11(b) Charter application brought by the Appellant. The hearing of this application accounted for two hours of court time. The matter was subsequently remanded to June 10, 2013.
[37] This delay period was partly caused by the Charter application brought by Ms. Nelson. Second, there is a paucity of evidence regarding when, after February 28, 2013, defence counsel was ready to proceed but the court was unable to accommodate him. Third, the court offered four dates; April 10, 16, 25 and May 27, 2013, for the trial to continue, but none of these dates was available to the defence.
[38] The trial judge was therefore correct in his conclusion that only six weeks or a maximum of two months of the delay period between February 28, 2013 to June 13, 2013, was attributable to institutional delay. This is so given that the defence was partially responsible for the adjournment of the trial and presented no evidence when they were ready to proceed to trial. Furthermore, the system offered four separate dates for the trial continuation, all of which were not available to the Appellant.
Prejudice
[39] The Appellant alleged in the second s. 11(b) application that the delay in the proceedings prolonged her work-related stress and increased the cost of her legal representation. Furthermore, she submitted that she had been unable to apply for certain employment positions because of the delay in the case.
[40] The trial judge found that the delay in the trial did not adversely impact Ms. Nelson’s ability to recall events or to testify in her trial. Second, that she would have had to incur additional costs of retaining legal counsel given that the trial would not have been concluded on December 6, 2012, had it commenced at 10:00 a.m. Third, that any increased legal costs incurred by Ms. Nelson was caused by her decision to bring a Charter application. Finally, that inferred prejudice may amount to actual prejudice where the delay in the proceedings became prolonged.
[41] In my view, the trial judge was correct in dismissing Ms. Nelson’s s. 11(b) application, given his conclusion that the aggregate amount of institutional delay in this case was 9.5 to 10 months, and that the prejudice suffered by Ms. Nelson was minimal.
[42] I should also reiterate that there is a societal interest in ensuring that matters as serious as drinking and driving are best adjudicated on their merits. While this consideration does not automatically trump an accused’s constitutionally guaranteed rights to a trial within a reasonable period, in cases where the institutional delay is not excessively long and where the actual prejudice is minimal, it may tip the scale in favour of the dismissal of a s. 11(b) application.
Disposition
[43] For the above reasons, the appeal is dismissed.
André J.
Released: May 12, 2015
CITATION: R. v. Nelson, 2015 ONSC 3045
COURT FILE NO.: 172/13
DATE: 20150512
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
CONSTANCE NELSON
Appellant
REASONS FOR JUDGMENT
André J.
Released: May 12, 2015