CITATION: R. v. Ritchie, 2016 ONSC 1443
COURT FILE NO.: 277/14
DATE: 20160301
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
DAVID RITCHIE
Appellant
COUNSEL:
HELENA GLUZMAN, for the Respondent/Crown
MARC HALFYARD, for the Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice I. Cowan, dated October 9, 2014]
DURNO, J.
[1] The appellant was charged with impaired operation and driving having consumed excess alcohol. His first trial date was adjourned on a Crown application because the breath technician had not been notified of the trial date and was on vacation. His second trial date was scheduled for 14 months and 13 days after the information was sworn. He applied to stay the proceedings contending his right to be tried within a reasonable time had been violated. The trial judge disagreed and dismissed the application.
[2] The appellant was convicted of impaired operation. A finding of guilt in regards to driving having consumed excess alcohol was conditionally stayed. He was sentenced to a $1500 fine and received a one year driving prohibition under s. 258 of the Criminal Code.
[3] He appeals contending the trial judge erred in dismissing the s. 11(b) application by miscalculating the institutional delay to the first trial date, by apportioning the time between the first and second trial dates between institutional delay and neutral time when it was the Crown’s error that caused the adjournment and in failing to consider specific prejudice in assessing the applicable guidelines for delay.
[4] For the following reasons, the appeal is allowed, the conviction and finding of guilt quashed and the proceedings stayed.
The Chronology
[5] The appellant was arrested on May 5, 2013. He was released from the station on a Promise to Appear requiring he appear in court on May 16, 2013.
[6] The information was sworn on May 9, 2013. Pursuant to the Supreme Court of Canada judgment in R. v. Kalanj, 1989 63 (SCC), [1989] 1 S.C.R. 1594 this is the date upon which the appellant was “charged with an offence” and the s. 11(b) clock started.
[7] On May 16, 2013, the appellant’s counsel filed a designation on his behalf and obtained disclosure. The case was adjourned to May 23, 2013 at the request of the appellant.
[8] On May 22, 2013, the appellant’s counsel faxed a letter to the Crown advising that significant disclosure remained outstanding including documentation relating to the Intoxilyzer and Approved Screening Device (ASD) use and calibrations.
[9] On May 23, 2013, the case was adjourned to June 6, 2013, so that a counsel pre-trial could be held.
[10] On June 6, 2013, the Crown elected to proceed summarily. No further disclosure was available and the case was adjourned to June 27, 2013, to permit the Crown to provide the disclosure.
[11] On June 27, 2013, the appellant requested a one-day adjournment so that a counsel pre-trial could be held as his trial lawyer was ill.
[12] On June 28, 2013, trial counsel attended, filed a Charter application for the trial, obtained further disclosure and a counsel pre-trial was held. At the pre-trial, Crown counsel agreed that the material regarding the calibration, maintenance, and use of the ASD was relevant and would be provided. A trial date of February, 25, 2014 was set. (7 months and 28 days from the ‘set date’ and 9 months and 17 days from the date the information was sworn). That was the first date offered by the Court. Trial counsel was available the week after June 28, 2013 and had numerous dates available throughout July, August and September, 2013.
[13] The appellant was remanded to August 15, 2013 to insure that the further disclosure was provided. A further appearance on September 5 was required but the disclosure remained outstanding. It was finally provided on January 9, 2014.[^1]
[14] On February 18, 2014, the Crown told the appellant’s counsel that an adjournment application would be brought on the trial date because the Intoxilyzer technician was not available for the trial. While the trial date was set before the officer booked his vacation, he had not been notified of the trial date and booked a holiday for the week of the trial. If the adjournment was not granted, the Crown would call a toxicologist at the trial. A letter setting out these issues was faxed to the appellant’s counsel. It included a curriculum vita for the expert but did not include an expert’s report so that the Crown had not complied with s. 657.3 of the Criminal Code with respect to timely notice of an expert witness and by not providing a report.
[15] The Crown’s adjournment application was argued on February 20, 2014 as the appellant’s counsel offered to have it heard before the trial date. The affidavit filed in support of the application said that it was “an application for an order adjourning the trial date and setting a new trial date on a mutually convenient date.” Due to a “notification error,” PC Bell, the technician, was unavailable to testify on February 25, 2013. The trial date had been set “in accordance with the officer’s availability.” The affidavit continued:
On February 13, 2013, the Crown counsel assigned to the Respondent’s trial contacted both the officer-in-charge and PC Bell the technician to confirm they had received notice of the trial and would be in attendance.
On February 14, 2014, PC Bell notified Crown counsel that he had not received notice of the trial date. As a result, he had booked the week of February 24th for a vacation out of the country. He was accordingly not available to testify at the trial.
The Crown’s position is that PC Bell is a required witness to address the issue of whether or not the samples were taken as soon as practicable. There is no other avenue through which evidence to address this issue may be presented to the court.
[16] At the application, heard by Mr. Justice E. Allen, the following submissions were made:
Defence Counsel: Your Honour, my position is I’m opposed but in the circumstances I can see how the Crown would get their adjournment. It’s a situation where a trial date was set quite a while ago, it looks like there was some type of administrative error where the officer wasn’t notified, that’s a material witness for the Crown. Apparently, he’s away next week when the trial is. Mr. Maund called me on Tuesday and notified me that he’d be seeking an adjournment on the date of trial. I advised him I could be here on Thursday to hear it in advance of the trial date. So it’s being brought in advance of the trial, I received notice he was going to seek an adjournment. I’m opposed but it does appear to be an administrative error on behalf of the Crown.
The Court: Well, these things happen, it’s not
The Crown: The only other suggestion I would have, Your Honour, and I don’t know if my friend discussed it with Mr. Maund, looks like it’s a two officer case, it’s the breath tech that’s – has to be - is out of the country on vacation. Would it make any sense to start the case and just call the – the other officer first or is that just …
Defence Counsel: In the circumstances, Your Honour, if I thought that would compress it or save time in any way, I think the difficulty is if we get a seized judge …
The Crown: Yeah
Defence Counsel: … it could cause further delay.
The Court: Yeah.
Defence Counsel: the other issue is obviously the cost to my client …
The Court: Sure
Defence Counsel: … of having two court appearances.
The Court: Sure
Defence Counsel: But we would have been ready to proceed next week.
The Crown: Yeah.
Defence Counsel: But I understand it’s – looks like it’s just a – technical error.
The Court: Yeah. So, well, I’ll grant the application, vacate the trial date and when do you want to set a new date?
Defence Counsel: I’d like to set a new date today, if possible
The Court: Okay, we’ll hold it down.
The Crown: Yes.
Defence Counsel: … Your Honour, because 11(b) is in issue.
[17] Counsel then confirmed that the time estimate was three quarters of a day and the case was held down for counsel to obtain a new trial date.
[18] When the case was recalled, July 21, 2014 was set for trial and April 30, 2014 for the s. 11(b) application.
[19] The Trial Confirmation Sheet showed the appellant’s counsel was available for the first three dates offered: May 13, July 16 and 21, 2014. The Crown was only available on the last date. Across from the May 13, 2014 date in the Comments column, the notation “officer n/a until June 18” appears. Across from July 16, 2014, the notation “counsel n/a until July 18” appears. Below the May 13, July 16 and 21 dates, a second set of dates, June 23, June 27 and July 9, 2014 are noted. It is not readily apparent why dates in the middle of the first three were provided later. The Crown was available on all three dates but defence counsel was unavailable. He was available on numerous dates throughout March, April, May, June and July that were not available to the Court or Crown.
The Appellant’s Affidavit on the s. 11(b) Application
[20] The appellant’s affidavit noted the ongoing stress and anxiety, having to decline significant employment opportunities because he requires his driver’s license to work, strain on his marriage and family and increased legal fees. He was not cross-examined on the affidavit.
The Reasons Dismissing the s. 11(b) Application
[21] The trial judge found that between the arrest date and the date the trial was scheduled was neutral intake time. No issue is taken with that finding. From setting the trial date to the first trial date was institutional delay – 7 months and 28 days. From that time His Honour deducted one month for counsels’ preparation time and concluded that there was 6.5 months institutional delay to the first trial date.
[22] With respect to the time between the two trial dates His Honour apportioned the delay between inherent time requirements (3 months) and neutral time (2 months) noting:
The case law supports the proposition that unexpected events happen in the course of setting trial dates that are accidental and, while causing disruption in the process, are not deliberate and not directly attributable to any one party. It would appear that this is one of those cases where the Intoxilyzer officer was not notified of the trial date and when it came to his attention that he was required, he brought it to the attention of the Crown who acted diligently in notifying the defence of the need for an adjournment.
The offer was made by the Crown to start the trial as scheduled and adjourn it for this officer’s evidence. While it might have caused some additional expense to the defendant, I cannot infer that having a judge seized of the case would have caused further or more delay than adjourning the entire case for five months. The prejudice that the defence raises now, might well have been totally avoided if the matter had started in February and finished well before July.
As a result, I consider that only three months of the period between February 20 and July 21, 2014 is attributable to institutional delay and two months of this time is attributable to neutral delay.
[23] In the result His Honour found 9.5 months were institutional delay and within the guidelines. The trial judge dismissed the application to stay the proceedings.
Did the Trial Judge err in Dismissing the s. 11(b) Application?
[24] On appeal from a s. 11(b) ruling, a correctness standard of review applies to the application judge’s assessment of the various periods of delay, ascribing legal character to them and allocating them to the various categories set out in Morin. R. v. N.N.M. (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 (C.A.), at para. 6. The same standard applies to the ultimate decision whether the delay was unreasonable. R. v. Cranston (2008), 2008 ONCA 751, 244 O.A.C. 328 (C.A.). The findings in relation to the underlying facts are reviewed on a standard of palpable and overriding error. R. v. Ralph, 2014 ONCA 3 at para. 5. Here, there is no challenge to the underlying facts. The appeal is primarily based on an alleged mischaracterization of the time periods. As such the findings and the ultimate decision are reviewable on a correctness standard.
[25] The starting point in a s. 11(b) analysis is that the Crown bears the responsibility of bringing an accused to trial within a reasonable time: R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 11.
[26] While guidelines are an important component to any s. 11(b) analysis, guidelines are just that – guidelines. They are not limitation periods nor are they fixed in stone. They are a first, not the last step in the s. 11(b) analysis. Once the guidelines are examined, the presence or absence of specific prejudice can reduce or expand the guideline times. As the Supreme Court of Canada held in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771.
53 The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact.
[27] The applicable guideline in this case is found in the Court of Appeal’s judgment in R. v. Rego, 2005 40718 (ON CA), [2005] O.J. No. 4768 (C.A.). For a straightforward summary conviction case the guideline of institutional and Crown delay is 8 to 9 months in Peel Region.
[28] In appealing the ruling, the appellant raises four issues:
The trial judge erred in finding that there was 6.5 months of institutional delay to the first trial date.
The trial judge erred in assessing one month for preparation time instead of one or two weeks.
The trial judge erred in apportioning the time between the two trial dates assigning three months to institutional delay and two months to neutral time. This issue includes the effect, if any, of defence counsel’s not accepting the Crown’s suggestion that the trial could start with one Crown witness on the first scheduled trial date and adjourning to a later date for the Intoxilyzer technician’s evidence.
The trial judge erred in failing to determine the impact on the reasonableness of the delay from the unchallenged specific prejudice suffered by the appellant.
The Trial Judge’s Finding regarding the institutional delay to the first trial date
[29] I agree with the appellant that the trial judge miscalculated the time between the setting of the first trial date and the trial date. The total period was 7 months and 28 days. His Honour deducted one month for preparation and assessed 6.5 months of institutional delay. It should have been 6 months and 28 days.
Preparation Time
[30] The trial judge determined that the institutional delay from the setting of the trial date to the trial date should be reduced by one month for counsels’ preparation time. The institutional delay runs from when both counsel are ready for trial and the system cannot provide a judge and courtroom. It would be a very exceptional case where both counsel were ready for trial, including having all witnesses interviewed and subpoenaed, research and preparation completed, Charter notices and applications filed or responded to, on the date the trial is set. His Honour’s allotment of one month for preparation was in accord with what the Supreme Court of Canada assigned to preparation in Morin, a straightforward drinking and driving case. It is not clear from Morin whether counsel made submissions with regard to the preparation time or the Court assigned that period as appropriate for a drinking the driving case.
[31] What is different here is that there was evidence before the trial judge from which a shorter period could have been inferred. While the trial judge twice referenced the defence first being available from July, 2013, the transcript of the ‘set date’ appearance shows defence counsel said that February 25, 2014 was the first date offered and that he was “available to do this trial as early as next week and I have plenty of availability throughout July, August and September.” He had already filed his Charter application.
[32] On the basis of this record, the appellant initially submitted that the trial judge erred in not deducting one week for preparation time because counsel was available the next week. However, filing a Charter application one week before trial would have been problematic since the Rules of the Ontario Court of Justice required 30 days’ notice of Charter applications with the Crown having 15 days to respond. In light of the rules, the appellant submitted that two week or a 15 day deduction would have been more appropriate.
[33] While the Supreme Court of Canada imputed one month preparation time in Morin and in three months in R. v. Sharma, 1992 90 (SCC), [1992] 1 S.C.R. 814 where it was a drinking and driving case that involved an accident and numerous civilian witnesses, the Court of Appeal for Ontario has declined to impute preparation time in the absence of estimates from counsel. R. v. N.N.M. (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436. Where there is evidence upon which an application judge could assign preparation time or the court determines that it can otherwise do so, preparation time should be deducted from the institutional delay between the date upon which the trial date was set and the trial date.
[34] However, when counsel are ready for trial, meaning available and fully prepared to proceed, should not be determined by one counsel’s readiness which is the effect of the appellant’s submission. Being ready for trial is not simply a function of defence counsel’s position. In Morin, Sopinka J. held that institutional delay starts when the parties are ready for trial. Witnesses have to be subpoenaed or otherwise contacted to attend, Crown counsel have to be assigned if that has not occurred, research completed and in most cases witnesses interviewed before the Crown is ready to proceed. Clearly in the straightforward cases it would be wrong to assign more than a month simply because the Crown said he or she required two or three months without more information. However, it would be unrealistic to permit defence counsel to say they are ready in one week and that is the date upon which s. 11(b) institutional delay starts. I am not suggesting the Crown can extend the ready for trial date by providing outstanding disclosure weeks or months later.
[35] In this case, there is a further hurdle for the appellant. In the transcript from the date the first trial date was set, the following comments were placed on the record by trial counsel:
Your worship, what I can indicate is I went to the trial coordinator and got a date. The Crown still has disclosure that’s outstanding so I’m going to set it over for an interim date to get the rest of the disclosure the Crown will provide, and then I’ll decide whether or not I’m satisfied with disclosure at that point. But for now I’d like to just move it forward and set a date so I have the form …
[36] After receiving initial disclosure, the appellant’s trial counsel wrote the Crown in relation to the ASD and the Intoxilyzer records on May 22, 2013. On June 29, 2013, the Crown advised the appellant’s trial counsel that they agreed with some but not all of his requests. The Crown undertook to provide what they agreed could be disclosed. Defence counsel understandably took the position he wanted to see what was provided before, I infer, deciding whether there would be a disclosure application.
[37] I appreciate that defence counsel is placed in a ‘Catch-22’ when they set a trial date before disclosure is obtained. An accused is not excused from setting a trial date simply because disclosure is not complete. R. v. Kovacs-Tatar, 2004 42923 (ON CA), [2004] O.J. No. 4756 (C.A.), at para. 47. However, to suggest that counsel was “ready for trial” the next week on this record is problematic unless counsel did not need to obtain the disclosure.
[38] On an August 15, 2013 appearance regarding disclosure counsel appeared for trial counsel and told the presiding justice of the peace there was outstanding disclosure and trial counsel “wishes to review this, there might be a resolution depending on what’s in the DVD.”
[39] Finally, on September 5, 2013 trial counsel told the presiding justice of the peace that he had still not received the ASD calibration records but suggested the case be remanded to the trial date as he had the bulk of the disclosure and he would follow up by letter.
[40] In these circumstances, the trial judge did not err in apportioning one month for preparation.
The time between February 25 (the first trial date) and July 21, 2014, (the second trial date)
[41] The trial judge found that three months was attributable to the institutional delay and two months was neutral time. No time was attributable to Crown delay. The appellant submits that His Honour erred: 1) in apportioning the time from a Crown adjournment application and 2) in speculating that he “could not infer that having a judge seized of the case would have caused further or more delay than adjourning the entire case for five months.”
[42] The Crown submits that the apportioning was appropriate as the adjournment was no one’s fault, it was akin to a witness becoming ill - one of those things that happens in litigation. In addition, the respondent contends in effect that the appellant essentially waived an earlier trial date, by refusing to start the trial on the first trial date and continuing it when the officer was available.
[43] His Honour found:
The case law supports the proposition that unexpected events happen in the course of setting trial dates that are accidental and, while causing disruption in the process, are not deliberate and not directly attributable to any one party. It would appear that this is one of those cases …
[44] I am persuaded the trial judge erred in apportioning the time between the two trial dates and in finding the delay was institutional and neutral delay. The s. 11(b) analysis requires the judge to consider the various parts of the delay and characterize the delay as defence delay, Crown delay, institutional/systemic delay, or neutral/inherent delay: R. v. Boateng, 2015 ONCA 857 at para. 20. Delays that will count against the Crown include adjournments requested by the Crown. R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45 at para. 49. This was a Crown adjournment application.
[45] The officer’s unavailability was unexpected because apparently there was no way anyone checks the officers’ availability unless or until an assistant Crown Attorney contacts the officers to see if they have been notified of the trial date. Further, there is no suggestion that the failure to notify was deliberate. However, the delay was clearly caused by the Crown. That the record is silent as to whether it was the Crown who failed to advise the Peel Police, the Peel Police who failed to notify the officer or a failure in the Niche system matters not. For the purposes of s. 11(b) the Crown and police (the prosecution) are one.
[46] His Honour referenced cases that dealt with situation “for which no one can be faulted and inevitably require an adjournment:” at para. 13. He also noted the “normal vicissitudes of a trial” and that events occurring in the “normal evolution of a trial” were part of the inherent requirements of the case “unless the delay can readily be attributed to one side or the other or the court system:” at para. 14. The trial judge then found the “need to adjourn the first trial date lies at the feet of the Crown due to an administrative error in not notifying the Intoxilyzer officer of the trial date:” at para. 23. Notwithstanding that finding, none of the delay was characterized as Crown delay.
[47] The respondent argued that this situation was analogous to cases where witnesses become ill. I disagree. Ms. Gluzman could provide no cases where the delay was caused by the Crown’s administrative error in failing to get their witnesses to court and the delay was apportioned or characterized as institutional or neutral delay.
[48] The trial date was set on June 28, 2013. From the submissions on the appeal, police officers in Peel Region are not subpoenaed to court. Instead, they are notified through the Niche system that either emails or texts the officer the trial date. The only information was that the trial date was set, through an administrative error the officer was not notified, he set his vacation that covered the trial date, he was contacted by a Crown Attorney 12 days before the trial and advised of the conflict, the Crown notified counsel and five days before the trial the Crown adjournment application was argued.
[49] The final area in relation to the time between the trial dates is the Crown’s suggestion that the trial could have been started on the first date and continued when the technician was available. At the adjournment application a Crown who was not assigned to the case inquired if the assigned Crown and defence counsel had discussed the potential for a bifurcated trial and questioned “if it would make sense” to start the trial with one witness and adjourn for the second Crown witness and any defence witnesses. As noted above the transcript is incomplete with regards to what the Crown said. It notes, “Would it make any sense to start the case and just call the – the other officer first or is that just …”
[50] Defence counsel said that he would agree to that procedure if he “thought it would compress it or save time in any way” and proceeded to raise his concerns for additional appearances, costs to the appellant and whether it would result in a longer period. Both the presiding judge and Crown counsel noted their apparent agreement with defence counsel’s submissions.
[51] The trial judge found that while it might have caused additional expense (a relevant consideration in regards to prejudice), that he could not “infer that having a judge seized of the case would have caused further or more delay than adjourning the entire case for five months.” (Emphasis added) With respect, the important question was whether having a seized judge would have caused less delay, not whether it would have caused more delay.
[52] His Honour then found that the prejudice the appellant contended on the application “might well have been totally avoided” if the matter had started in February and finished well before July.” That the prejudice might have been totally avoided is speculative as there is nothing from which it could be inferred that the trial would have been completed in a shorter time. It might have, it might not. On the adjournment application, the judge and Crown appeared to agree that a bifurcated trial could have resulted in greater delay and expense. Both are valid considerations.
[53] That the prejudice the appellant raised on his s. 11(b) application could have been “totally avoided” is further speculation. Indeed, it is difficult to see how the total prejudice could have been avoided on a quickly completed bifurcated trial. Trial counsel’s position was realistic and understandable.
[54] The trial judge and the respondent inappropriately turn defence counsel’s valid considerations regarding added prejudice from greater delay and expense into what in effect is a s. 11(b) waiver or something akin to it. This was in spite of His Honour’s finding that the appellant had not caused any delay. The defence position was neither a waiver nor anything akin to a waiver.
[55] Second, the suggestion of a bifurcated trial was inconsistent with the Crown’s request on the Notice of Application for the adjournment - to adjourn the trial date, not bifurcate it.
[56] In the result, I find that the trial judge erred in apportioning the time, in finding the appellant effectively waived his s. 11(b) rights by speculating that a bifurcated trial might have resulted in more delay and prejudice. It might have, it might not have.
[57] The trial judge erred in not attributing the entire time to Crown delay. In the result the total Crown and institutional delay is 6 months and 29 days to the first trial date and 5 months and 2 days from the date the second trial date was set to the second trial date. The total delay is 11 months and 26 days to avoid ‘double counting’ 5 days because the adjournment application was heard and a new date set 5 days before the first trial date.
Prejudice
[58] In the s. 11(b) context, there are four types of prejudice. First, there is prejudice caused by being charged. That is irrelevant to the s. 11(b) analysis because the prejudice relevant to s. 11(b) is the second type of prejudice, prejudice caused by the delay. This is the prejudice with which s. 11(b) is concerned. Third, there is inferred prejudice that requires no evidence to establish as it is inferred from the length of the delay. The final type of prejudice, is prejudice specific to the applicant, the most relevant prejudice in the s. 11(b) context.
[59] The Supreme Court of Canada has described specific prejudice as follows in Morin at para. 63:
Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation", to use the words adopted by Lamer J. in Mills, supra, at p. 919. The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability to make full answer and defence. (Emphasis added)
[60] Specific prejudice can include additional court appearances and costs caused by the delay. In Rego, the Court of Appeal found that additional appearances for Blitz Court assignment were an appropriate prejudice to consider. In R. v. Feeney 2014 ONCA 270 at para. 6, the Court acknowledged that increased legal fees can lead to prejudice. See also: R. v. Patel, [2014] O.J. No. 2777 (S.C.J.), at para. 107.
[61] While Hill J. found that additional counsel fees were not applicable in the prejudice calculation in R. v. Hoffner (2005), 2005 32924 (ON SC), 24 M.V.R. (5th) 280, (S.C.J.), a case relied upon by the respondent, the request there was for additional court dates after the technician was very ill on the date of trial and home in bed.
[62] There is no doubt the trial judge reviewed the alleged prejudice in detail. However, reviewing the evidence without any analysis does not mean His Honour conducted the appropriate assessment of the alleged prejudice. For example, His Honour did not note which items were properly prejudice caused by the delay and which were prejudice from other causes. Nor did he mention what effect, if any, the uncontested prejudice from the delay had on the guidelines. His Honour outlined the alleged prejudice and concluded that there was 9.5 months of institutional delay which was within the guidelines permitted. No further analysis was provided.
[63] The Crown says that I can infer the trial judge knew and applied the law although he never mentioned the effect of the alleged prejudice. The appellant says that inference cannot be drawn. I agree with the appellant.
[64] To infer as the Crown suggests I should, that the trial judge engaged in the balancing that is required and determined whether in this case that period was unreasonable would be speculation, unsupported by the Reasons. The trial judge never said he was conducting the balancing and there is nothing in the reasons from which I could infer that it occurred. Once it is determined that the time to trial is sufficient to require an inquiry, determining that the institutional and Crown delay is within the guidelines, treats the guidelines as generic limitation periods without a case-specific analysis. See: R. v. Patel, [2014] O.J. No. 2777.
[65] In R. v. Florence, 2014 ONCA 443, The Court of Appeal outlined the applicable law as follows:
30 At p. 788, Sopinka J. explained that the "judicial process referred to as 'balancing' requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable."
- In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18, the Court gave a succinct summary of the balancing required under s. 11(b): "Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect." In Godin, at para. 18, the Court also reiterated Sopinka J.'s warning in Morin, at p. 787, that the "general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s.11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."
[66] Finally, in R. v. Tran, 2012 ONCA 18, at para. 63, the Court of Appeal addressed the issue as follows:
The Morin guideline for delay in the Ontario Court of Justice is eight to ten months. However, the guideline is just that: a guideline, not a limitation period. Deviations of several months in either direction can be justified by the presence or absence of prejudice: Morin, at p. 807.
[67] In the absence of an assessment of the prejudice, it falls to this Court to examine the prejudice and to conduct the balancing. No doubt, there was no prejudice to the appellant’s fair trial rights or his ability to make full answer and defence. That form of prejudice is not a prerequisite to a stay. Some of the alleged prejudice from not being able to drive would be premised on being acquitted. The appellant was convicted and no appeal was taken from the conviction.
[68] However, ongoing stress to the appellant and his family because of the delay were appropriate factors for consideration. That he had increased legal fees is also a relevant consideration. That he was uncertain what employment opportunities he could take is a further relevant consideration. That he had concerns for his professional reputation as a result of having to turn down employment positions was relevant as well.
[69] On this record, I conclude there was some specific prejudice. It was neither minimal nor substantial prejudice.
[70] Turning next to the balancing, 11 months and 28 days is almost two months above the Morin guidelines and almost three months above the guidelines for Peel Region for straightforward summary offences. Those findings in themselves do not result in a stay because deviations of several months in either direction can be justified by the presence or absence of prejudice. I cannot say that there is no prejudice so as to justify a longer period of reasonable delay. There is some unchallenged specific prejudice that supports the use of the lower end of the Morin guidelines.
[71] No doubt there have been cases where delays in this range or above have not been stayed. There are also cases in the area of a year where the proceedings were stayed. Both sets of cases illustrate the case-specific nature of the analysis. Each case is fact-specific. The nature and complexity of the trial is also an important consideration as illustrated by R. v. Kovacs-Tatar (2004), 2004 42923 (ON CA), 73 O.R. (3d) 161 (C.A.). This was not a complex case.
[72] Here, with some specific prejudice, the institutional and Crown delay are almost 3 months above the top of the applicable guideline and importantly the appellant was always pressing for an early trial date. I am persuaded that the appeal should be allowed, the conviction for impaired operation and the finding of guilt for driving having consumed excess alcohol are quashed and the proceedings stayed.
Conclusion
[73] The appeal is allowed and the proceedings stayed.
DURNO J.
Released: March 1, 2016
CITATION: R. v. Ritchie, 2016 ONSC 1443
COURT FILE NO.: 277/14
DATE: 20160301
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
RESPONDENT
- and –
DAVID RITCHIE
APPELLANT
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice I. Cowan, dated October 9, 2014]
Durno J.
Released: March 1, 2016
[^1]: While the trial judge twice referenced the disclosure being completed August 15, 2013 it was not provided until January, 2014.