COURT FILE NO.: CR-15-220-00AP DATE: 20160715 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – BRANDON NORRIE Respondent

COUNSEL: K. Hull, for the Crown C. Shirtliff-Hinds, for the Respondent

HEARD: June 27, 2016

REASONS FOR DECISION ON APPEAL FROM THE DECISION OF THE HON. MR. JUSTICE G. REGIS DATED SEPTEMBER 16, 2015

DiTOMASO J.

INTRODUCTION

[1] The appellant (the Crown) appeals against this stay of proceedings for the charge against the respondent Mr. Norrie (Norrie) of driving with excess alcohol contrary to s. 253(1)(b) of the Criminal Code of Canada made by His Honour Justice Regis of the Ontario Court of Justice at Barrie, Ontario on September 16, 2015. The Crown seeks an order allowing the appeal and convicting Mr. Norrie or, in the alternative, remitting the matter for a new trial.

OVERVIEW

[2] The facts in this case are not in dispute.

[3] Mr. Norrie was arrested on June 14, 2014 for the offence of “over 80”. His trial took place on July 27 and 29, 2015 before His Honour Justice Regis. On September 16, 2015, Justice Regis stayed the charge.

[4] Mr. Norrie submitted that he ought to be granted a stay because in addition to his Charter rights being breached, an inadvertent police error had denied him a potentially favourable sentencing consequence in relation to his privilege to drive. The trial judge agreed. However, one of the issues, relates to the adequacy of his reasons.

[5] A summary of the facts is as follows. On morning of June 14, 2014, Mr. Norrie was operating a motor vehicle on Innisfil Beach Road in the Town of Innisfil. He was travelling at 94 km/hr. in a posted 60 km/hr. zone. PC Phillips of the South Simcoe Police observed the high speed and attempted to stop the vehicle. After a slightly longer than usual time, and at 2:16 a.m., Mr. Norrie pulled his vehicle to the side of the road.

[6] The officer noted a strong odour of alcohol in the vehicle and asked Mr. Norrie to step out as there was also a passenger in the vehicle. The officer noted that Mr. Norrie had bloodshot eyes and had difficulty producing his paperwork. In response to the officer's question, he indicated that his last drink had been two hours prior at a bar in Barrie.

[7] PC Phillips, who was also a qualified Intoxilyzer technician, formed the suspicion that Mr. Norrie had alcohol in his body and gave Mr. Norrie a demand to provide a sample of his breath into the approved screening device (ASD), with which he complied at 2:21 a.m., registering a 'Fail'. This result told the officer that Mr. Norrie’s blood alcohol concentration exceeded 80 mg. in 100 ml of blood, and accordingly the officer placed him under arrest for the "over 80" offence.

[8] While Mr. Norrie was handcuffed in the rear of PC Phillips' cruiser, PC Phillips attended again at Mr. Norrie’s vehicle to speak to the passenger. While speaking with her, he noticed a part case of beer in the vehicle. A subsequent search of the vehicle turned up one part, and two full cans of beer in the centre console. The part can being open and accessible to the driver, PC Phillips became concerned that the presence of mouth alcohol might have distorted the screening device result.

[9] PC Phillips returned to his cruiser, formally released Mr. Norrie’s from arrest, took off the handcuffs and explained to Mr. Norrie that he would have to provide a second sample of his breath, and explained why.

[10] While waiting for the required time to clear any mouth alcohol to elapse, PC Phillips offered to assist Mr. Norrie in contacting counsel, and retrieved Mr. Norrie’s phone from his vehicle. The officer is familiar with IPods, and he knows he retrieved a 'phone,' not an IPod. Mr. Norrie indicated that he did not have counsel, but in any event the phone had no reception. PC Phillips did have a police cell 'phone with service, but made the decision not to offer it to Mr. Norrie as he was concerned about not being able to assure Mr. Norrie of privacy.

[11] By that time it was 2:35 a.m. and at least 15 minutes had passed since the first test. The officer reissued the ASD demand, Mr. Norrie complied and again registered a 'Fail'.

[12] Mr. Norrie was arrested, read his rights to counsel, given a breath demand and taken to the North division of the South Simcoe Police for breath tests. They arrived at 2:47 a.m., and as a result of PC Phillips having called ahead, Mr. Norrie spoke to duty counsel in private at 2:49 a.m.

[13] Two breath tests were conducted in compliance with the Criminal Code, and Mr. Norrie was ultimately released on a Promise to Appear with a return date of June 26, 2014 in Bradford. On that date Mr. Norrie attended court as directed but no information was before the court.

[14] PC Phillips became aware of the problem and searched personally for the missing brief, finding it and causing an information to be laid on July 25, 2014, and a summons to be issued returnable August 21, 2014. The summons was left with the OPP to serve on Mr. Norrie. This was not done, and the matter was again not properly before the court on August 21. There was no explanation for the various failures, and PC Phillips described it as an unusual situation.

[15] PC Phillips learned of this failure and prepared and served a new summons on Mr. Norrie on or about September 3, 2014, returnable September 25, 2014. Thereafter, the matter proceeded normally.

[16] PC Philips may have told Mr. Norrie about 'Stream A' prior to releasing him, but did not know very much about it. The officer was not aware that it was administered by the Ministry of Transportation.

[17] Mr. Norrie testified that he was pulled over by the police between 1:30 and 2:00 a.m. and was asked to provide a sample of his breath at the roadside at 2:15 a.m. He was told by police he had failed, and was left alone in the cruiser while the officer went to look in his car for a 'phone.

[18] PC Phillips returned with an IPod and told Mr. Norrie he would be kept there for 15 more minutes for a second test. The officer explained why, Mr. Norrie told him he had not had a drink in two hours but the officer did not believe him.

[19] Mr. Norrie testified that he provided a second sample, was told he failed again and was arrested. Mr. Norrie testified that he could not recall mention of a lawyer until he got back to the police station.

[20] Mr. Norrie was released from the station with a court date of June 26, 2014. He testified that he attended that day with the intention of taking advantage of 'Stream A' subject to legal advice; there was no paperwork, he was free to go, and he left thinking he was not charged.

[21] He heard no more about it until September 3 or 4, 2014, when PC Phillips attended at his workplace, Georgian College, to serve him with a summons. Prior to June 26, he had been thinking of taking advantage of 'Stream A' but realized that by September, he would be appearing in court too late to take advantage of it. He described himself as upset and depressed about the way he was served, although he acknowledged that the officer had been in plainclothes, and that he himself had advised others at work about the charge.

[22] He testified that he became depressed because 'Stream A' was no longer available and he became afraid that he would lose his job or not be able to look after his parents. He did concede that when he left court on June 26 he thought he had had a lucky break, although he was aware that the police could still obtain a summons.

[23] Rosa Norrie, Mr. Norrie’s mother, testified that Mr. Norrie became depressed after he was charged and began having anxiety attacks. The anxiety became worse after September 3. She described Mr. Norrie as saying he would “probably” take ‘Stream A'.

[24] She also testified that no one from the police contacted her or attended the house looking for her son between June 26 and September 3, 2014. This was corroborated by an affidavit from her husband, Robert Norrie, filed on consent.

REASONS OF THE TRIAL JUDGE

[25] The complete reasons of Justice Regis can be found in Appellant’s Appeal Book at Tab 6.

[26] His reasons are as follows:

RULING REGIS, J. (Orally)

The defendant asserts that in the course of his arrest and subsequent processing of these charges, several breaches of his Charter rights occurred.

He contends that the breaches which occurred post charges are particularly prejudicial. He seeks a stay of these charges. The Crown takes the opposite view.

The defendant was stopped while speeding at approximately 2:15 a.m. on June 14th, 2014. There was a female passenger in the front seat of the vehicle which he was operating. The officer smelled a strong odour of alcohol inside of the motor vehicle. The defendant's eyes were bloodshot and he said he last drank two hours before he was stopped. An ASD demand was made. A sample was taken at 2:21 a.m. and that resulted in a fail. The defendant was arrested and charged with over 80 and placed in the back of the police cruiser. No rights to counsel were provided at that time.

The officer went back to the car to speak with the female passenger. At that time, he saw open liquor in the defendant's motor vehicle. This caused the officer to doubt the defendant's answer about the time of his last drink. The officer was concerned about the effects of alcohol in the mouth.

He returned to the cruiser and had a conversation with the defendant about that issue. The defendant maintained his answer. The officer did not believe the defendant and asked him to tell the truth. Because of the officer's concern about the mouth/alcohol issue, the officer said he did release the defendant unconditionally, but as he testified in court, the defendant was not free to leave.

The officer offered to let the defendant call a lawyer of his choice or duty counsel. He removed the handcuffs from the defendant at that point. The officer then returned to the defendant's car to get the defendant's cell phone but there was no service on that phone. The officer had his own phone plus a police issue phone, both of which had signal and were in working order. He offered neither to the defendant.

At 2:35 a.m., the officer made a second ASD demand. The defendant complied and the result was another fail. The defendant was re-arrested at 2:39 a.m. and his rights to counsel were read at that time. The officer then used his phone, his police issue phone, to contact duty counsel to alert duty counsel that he was taking the defendant to the police station. At 2:42 a.m. a breath demand was of the defendant and they headed to the police station arriving there at 2:47 a.m. At 2:49 a.m. the defendant spoke to duty counsel and was taken to the breath room where he provided two suitable samples. He was served with a court appearance notice at 4:49 a.m. with a First Appearance date of June 26, 2014. On June 26, the defendant attended at court with a lawyer but there was no Information in court. On July 25th, the arresting officer became aware of the situation and started an investigation. His investigation revealed that the file which he had completed on June 14th had been mistakenly taken to an area where completed files should have been kept and, in fact, that the Information had not been sworn as a result. The officer discovered that this was not the only file which had been wrongfully filed in that area.

As a result of that discovery, the officer prepared the appropriate documents and had an Information sworn and forwarded a Summons and other documents which would notify the defendant of a new court date and these were forwarded to the OPP for service on the defendant. This is standard practice in this area.

Those documents prepared by the officer contemplated a court date of August 21st, 2014. No attempt was made to serve the defendant and he did not know of the August 21st date. On August 21st obviously nothing happened in court.

When the arresting officer discovered that new situation, he decided to personally serve the Summons on the defendant and he attended at the defendant's workplace on September 3rd and, indeed, personally served him with a Summons for a court date of September 25th, 2014.

I've had an opportunity to review the evidence and the case law, as well as submissions of counsel on this matter, and on the basis of all the evidence presented at this hearing, I find that there was no breach of his section 8 rights. I find that the officer had sufficient grounds to make the demands that he did.

The situation is different in respect to sections 7, 9, 10(b) and 11(d).

The officer released the defendant unconditionally but agrees that the defendant was not free to leave. I can't think of a better example of arbitrary detention. The defendant was first arrested at 2:21a.m., but he was not read his rights to counsel. There was no reason or explanation provided as to why this did not happen. His rights were read to him at 2:39 after he was re-arrested. He had been in detention at that point for 13 minutes. Together, I find these two breaches to be very serious but the biggest problem here is the breaches in relation to section 7 and 11(d).

The police service's handling of this case has resulted in real and substantial prejudice to the defendant. As a result of the way this case was handled by the police department, the defendant was unable to take advantage of the ignition interlock program, Stream A. This is not a small matter and it is a matter which cannot be remedied.

The defendant, on the basis of the evidence at this hearing, has met his burden in this application on a balance of probabilities.

I find this is a case in which the pre-charge delay can only be viewed as unreasonable because of the very serious consequences to the defendant. I am satisfied that a reasonable person's sense of fair play and decency would be offended if this case were to proceed. I find on a balance of probabilities that the defendant's rights under section 7, 9, 10(b) and 11(d) have been breached. Consequently, there will be a stay of these proceedings.

[27] The trial judge in his reasons for judgment found that the 15 minute wait for the second breath test constituted an arbitrary detention, thereby breaching s. 9 of the Charter. He also found that the 13 minute (sic) wait between the first 'Fail' and arrest at 2:21 a.m. and the provision of rights to counsel at 2:39 a.m. constituted a breach of s. 10(b) of the Charter. No s. 24(2) analysis was done.

[28] The trial judge also found that the fact that Mr. Norrie could not take advantage of 'Stream A' was not a small matter and that it could not be remedied. The remainder of his stay analysis is as follows:

I find this is a case in which pre-charge delay can only be viewed as unreasonable because of the very serious consequences to the defendant. I am satisfied that a reasonable person's sense of fair play and decency would be offended if this case was to proceed... . Consequently, there will be a stay of these proceedings.

[29] On this appeal, the parties agree that Mr. Norrie was detained by PC Phillips. However, the detention was not arbitrary. Mr. Norrie is not claiming that s. 9 Charter rights were breached. Accordingly, the parties did not argue on the appeal that Justice Regis committed a reversible error in finding that Mr. Norrie had been arbitrarily detained.

THE ISSUES

[30] This appeal was argued on the following grounds of appeal:

1. Did the learned trial judge err in finding a breach of Mr. Norrie’s s. 10(b) Charter rights?
2. Did the learned trial judge err by failing to give adequate reasons that could assist with respect to a potential appeal?
3. Did the trial judge err in granting a stay where Mr. Norrie suffered prejudice by being denied an opportunity to take part in the Stream “A” Program?

POSITIONS OF THE PARTIES

Position of the Crown

[31] The Crown submits that the trial judge erred in finding that Mr. Norrie’s s. 10(b) Charter rights were breached. Mr. Norrie was not arbitrarily detained, his detention for the second approved screening device test (ASD) did not trigger the right to counsel under s. 10(b). Mr. Norrie was given his right to counsel under s. 10(b) after the second test and he availed himself of the implementation stage of the right to contact counsel later, under the right to counsel pursuant to s. 10(b) at the police station. It is submitted that the trial judge erred that the 13 minute (or 15 minute) wait between the initial “fail” result and arrest, and the rights to counsel given after the second “fail” and arrest was a breach of Mr. Norrie’s Charter rights.

[32] The Crown further submits that the trial judge provided a dearth of reasons to grant a stay. It is submitted that his reasons are conclusory in respect of the alleged s. 10(b) breach. Further, the trial judge’s bare conclusion leave the appellate court bereft of the ability to review meaningfully his decision.

[33] Lastly, the Crown submits that the stay was groundless and was an inappropriate rare remedy granted to Mr. Norrie. It was a drastic and rare remedy granted to Mr. Norrie without any balancing of the interests of the community in having the charge disposed of on its merits against prejudice to Mr. Norrie.

The Position of Mr. Norrie

[34] Mr. Norrie submits that the trial judge made no error in respect of s. 10(b) Ruling, that his reasons although expansive, were adequate and sufficient to facilitate meaningful appellate review and that the stay was not groundless but appropriate in all the circumstances of this case.

ANALYSIS

The Standard of Review

[35] Absent a palpable and overriding error, the trial judge’s findings of fact in relation to an alleged Charter violation are to be given deference, but the scope of the Charter right is an extricable question of law for which the correctness standard applies. Mr. Norrie agrees that the scope of a Charter right is a question of law for which the standard of correctness applies. [R. v. Chang, [2003] A.J. No. 1281 (Alt. CA); R. v. Burke, [2011] O.J. No. 568 (S.C.J.)]

Did the learned trial judge err in finding a breach of Mr. Norrie’s s. 10(b) Charter rights?

[36] The Canadian Charter of Rights and Freedoms (the “Charter”) provides at s. 10(b):

10. Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right…

[37] Mr. Norrie asserted that in the course of his arrest and subsequent processing of these charges, several breaches of his Charter rights occurred. Further, Mr. Norrie contends that the breaches which occurred post-charges were particularly prejudicial. He sought a stay of these charges.

[38] The trial judge found that PC Phillips had sufficient grounds to make the demands that he did. He also noted that PC Phillips had a concern about mouth/alcohol issues and that he released Mr. Norrie, without conditions, so that the officer could determine in his investigation whether the first ASD was proper. Mr. Norrie was not free to leave. He was administered a second ASD and like the first result, he registered a “fail”.

[39] I find that the trial judge erred when he concluded that Mr. Norrie’s rights under s. 10(b) had been breached. Mr. Norrie was not arbitrarily detained. To the contrary, his detention was justified. He was detained for the purpose of ensuring that he was given a fair test. The further detention of Mr. Norrie to facilitate a second test was within the officer’s power and contemplated by s. 254(2) of the Criminal Code. R. v. Bernshaw, [1994] 3 S.C.R. 1076, at paras. 70-74; R. v. Einarson, 2004 ONCA 19570, at paras. 25-27 It is clear that PC Phillips had an honest belief on reasonable grounds that the delay was necessary to deal with the mouth/alcohol question. R. v. Einarson, 2004 ONCA 19570, at paras. 34-35

[40] Counsel for Mr. Norrie submitted that where a roadside breath demand is made and the driver is detained, his or her s. 10 rights under the Charter are prima facie triggered. R. v. George, 2004 ONCA 100, at para. 27

[41] However, if the demand if validly made pursuant to s. 254(2) of the Criminal Code in that it made “forthwith”, the police officer need not advise the detainee of his or her s. 10(b) rights, because, although s. 254(2) violates s. 10(b), it is reasonable limit prescribed by law and justified under s. 1 of the Charter. R. v. Thomsen (1988), [1988] 1 S.C.R. 640

[42] In Bernshaw, supra, Justice Sopinka held that a delay of 15 minutes occasioned for the purpose of obtaining a proper sample of breathe is a justifiable limitation on the right to counsel. R. v. Bernshaw, supra, at para. 75

[43] The further detention of Mr. Norrie with the second ASD test did not, trigger his right to counsel under s. 10(b). I find the trial judge was in error in describing the 13 minute (sic) wait between the initial “fail” result and arrest, and the rights to counsel given after the second “fail” and arrest as requiring any explanation, let alone as a breach of Mr. Norrie’s Charter rights. Rather, Mr. Norrie did not have the right to contact counsel during the officer’s investigation. He was not entitled to retain and instruct counsel and to be informed of that right since the roadside screening procedure was a reasonable limit on one’s right to counsel under s. 10(b) of the Charter.

[44] Further, the promptness of the access to counsel after arrest, and the nature of any breach were additionally not considered as the trial judge undertook no analysis under s. 24(2) of the Charter.

[45] For these reasons, I find the trial judge erred in finding arbitrary detention and why Mr. Norrie was not read his rights to counsel at the time of his first test. Mr. Norrie’s Charter rights under s. 10(b) were not violated. He was given his rights to counsel after the second test and at the police station, he availed himself of the implementation stage of rights to counsel in a timely manner.

Did the learned trial judge err by failing to give adequate reasons that could assist with respect to a potential appeal?

[46] It is submitted on behalf of Mr. Norrie that although brief, the trial judge’s reasons were sufficient. The Crown submits the trial judge’s reasons were conclusory, inadequate without providing the appellate court with the ability to review meaningfully the decision.

[47] The trial judge found on the balance of probabilities that Mr. Norrie’s rights under s. 10(b) had been breach. He provided no s. 24(2) analysis and he incorrectly concluded that the process of arrest was an arbitrary detention as opposed to a detention on reasonable grounds to make sure that Mr. Norrie was administered a proper test. All that we are left with is the erroneous conclusion surrounding the circumstances and finding that s. 10(b) had been breached when no such breach had occurred.

[48] The dearth of the trial judge’s reasons continued to be problematic regarding the granting of a stay without an analysis of the legal basis for so doing. In his reasons, he found that Mr. Norrie was served with a court appearance notice at 4:49 a.m. on June 14, 2014 with a First Appearance date on June 26, 2014. On June 26, he attended at court with a lawyer but there was no Information in court. On July 25, the arresting officer became aware of the situation and started an investigation. His investigation revealed that the file which he had completed on June 14, had been mistakenly taken to an area where completed filed should have been kept and, in fact, that the Information had not been sworn as a result. The officer discovered that this was not the only file which had been wrongly filed in that area.

[49] The trial judge went on to find that as a result of that discovery, the officer prepared the appropriate documents that had an Information sworn and forwarded a Summons and other documents which would notify Mr. Norrie of a new court date and these were forwarded to the OPP for service on Mr. Norrie.

[50] These new documents contemplated a court date of August 21, 2014. Mr. Norrie was not served with these documents and did not know about the August 21 date. Nothing happened in court on that day.

[51] When the arresting officer discovered that new situation, he personally served Mr. Norrie was a Summons for a court date of September 25, 2014. On that date, the case proceeded in the ordinary course.

[52] The trial judge concluded that the police service’s handling of this case resulted in real and substantial prejudice to Mr. Norrie. As a result of the way the matter was handled by the police, Mr. Norrie was unable to take advantage of the Ignition Interlock Program, Stream “A”. The trial judge found this was not a small matter and was a matter which could not be remedied. He found the pre-charge delay was unreasonable because of the very serious consequences to Mr. Norrie. He was satisfied that a reasonable person’s sense of fair play and decency would be offended if the case were to proceed and he ordered a stay of these proceedings.

[53] While trial judges are entitled to be brief in their reasons, there is a minimum requirement that the reasons state more than the result. The proper approach to the review of reasons is purposive. The purpose of reasons is to tell the parties why the result was reached and to facilitate meaningful appellate review. R. v. Sheppard, [2002] 1 S.C.R. 869, at paras. 24-28, 33; R. v. Labelle, 2014 ONCA 383, at paras. 5 & 6

[54] The trial judge’s assertions that Mr. Norrie suffered real and substantial prejudice and that a reasonable person’s sense of fair play would be offended if the case were to proceed constituted essentially the sum total of his analysis. R. v. Kendall, 2005 ONCA 430, at paras. 82-86

[55] I find the trial judge’s reasons are not adequate to provide an ability to review meaningfully his decision. The trial judge’s bare conclusion does not provide this court with the basis undertaken by the trial judge to arrive at his conclusions or the soundness of his reasoning process.

[56] The absence of any analysis of the appropriateness of the stay is particularly problematic. A stay is a “last resort” remedy that requires a careful consideration of whether this case falls into a category of the clearest cases that might attract a stay, whether the alleged prejudice to Mr. Norrie justifies stopping the prosecution, the potential for other remedies to redress the prejudice and a careful balancing of Mr. Norrie’s interests against society’s in having a trial on the merits. R. v. Zaranchang, 2010 ONCA 286, at para. 57

[57] In Zaranchang, at para. 49, the Ontario Court of Appeal considered the legal principles as articulated by the Supreme Court of Canada that governed the granting of a stay of proceedings pursuant to s. 24(1) of the Charter. The starting point was a consideration of a Supreme Court of Canada decision in R. v. O’Connor, [1995] 4 S.C.R. 411. In O’Connor, the court stated that a stay of proceedings is an exceptional remedy to be employed as a last resort, only after canvassing other available remedies. The court considered a residual category of conduct caught by s. 7 of the Charter. This residual category while not relating to conduct affecting the fairness of the trial, it did address a variety of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process. R. v. Zaranchang, supra, at para. 49; R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 73

[58] In Zaranchang, the Ontario Court of Appeal considered decisions of the Supreme Court of Canada and at para. 57 set out the following principles:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceeding under either of the above categories, the following criteria must be satisfied:

(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

(ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

[59] Where there has been no deliberate abuse on the part of the state, an accused may well be realizing a windfall. It becomes important to the trial judge to analyse whether the price of windfall is too high. In the case at bar, where a serious allegation is involved, this consideration is not dealt with in the trial judge’s reasons.

[60] The balancing exercise set out in the third criterion of cases coming within the residual category – the balancing of the interests in granting a stay against society’s interest in having a trial on the merits – was not evident upon a reading of trial judge’s reasons. To the contrary, his reasons do not suggest that he undertook the balancing exercise. Although Crown counsel at trial did submit factors militating against a stay, the trial judge’s reasons leave a gap and provide no analysis regarding the necessary balancing exercise.

[61] I do not agree with the submissions made on behalf of Mr. Norrie that the trial judge’s reasons are sufficient and adequate to provide meaningful appellate review. To the contrary, I find the trial judge’s reasoning does not provide the ability to assess meaningful appellate review of the correctness of his decision regarding the stay issue.

Did the trial judge err in granting a stay where Mr. Norrie suffered prejudice by being denied an opportunity to take part in the Stream “A” Program?

[62] In this case, the basis of the stay is purported to be the failure of the police to file the Information in sufficient time for Mr. Norrie to take advantage of the sentencing program that would allow him to regain his licence sooner. Mr. Norrie submits that this failure has operated a significant prejudice to him that cannot be remedied except for the granting of a stay by the trial judge which, in all the circumstances, was appropriate in this case.

[63] The Crown submits that the stay granted by the trial judge was a groundless stay. Such a stay would end the prosecution and the community would never see the criminal case decided on its merits. It is a drastic step and should be a rare remedy. R. v. Zaranchang, supra, at para. 49

[64] The Crown submits that granting a stay ought to take place in the “clearest of cases” and this is not one of them. To the contrary, it is submitted on behalf of Mr. Norrie that this is such a case where the granting of a stay was appropriate.

[65] At trial, Crown counsel submitted the following:

a. In order to qualify for the program he would have had to admit he committed the offence. b. There was no evidence before the court about the parameters of the program or whether Mr. Norrie would have qualified. c. Mr. Norrie was having significant financial difficulties. There was no evidence at trial about the cost of the program or whether Mr. Norrie could have afforded it. d. The prejudice alleged by Mr. Norrie was substantially that of the stress of being charged with a criminal offence. e. The actions of the police were, at most, negligent, certainly not deliberate or abusive. f. No trial fairness issues were engaged.

[66] The Crown submits that in assessing whether the delay in resolving his charges caused Mr. Norrie sufficient prejudice so that a stay should be considered, the trial judge ought to have had regard to the above factors. I agree. I further agree that had the trial judge done so, there was sufficient evidence to establish that the prejudice was not sufficiently serious.

[67] Even if the trial judge had been correct in finding serious prejudice, I am of the view that he was obliged to go on to balance the interests of the community in having the charge disposed of on its merits against such prejudice to Mr. Norrie.

[68] The societal interest in adjudication of drinking and driving offences is very high. Drinking and driving offences are serious crimes. Every year, drunk driving leaves a devastating trail of destruction through our society. It is a crime that causes the most significant social loss to our country. A stay of one of these charges should only be granted in the “clearest of cases”. R. v. Bernshaw, supra, at para. 16

[69] I find that the trial judge erred in granting a stay of proceedings in this case. He found the pre-charge delay as unreasonable because of the very serious consequences to Mr. Norrie. The trial judge came to the conclusion in respect of those serious consequences notwithstanding having regard to factors that would undermine his conclusion. Without more, he was satisfied that a reasonable person’s sense of fair play and decency would be offended if this case were to proceed. This finding was conclusory as well lacking in the supporting balancing exercise previously referred to.

CONCLUSION

[70] For these reasons, I would allow the appeal and a new trial is ordered.

DiTOMASO J. Released: July 15, 2016