R. v. Swaminathan, 2015 ONCJ 394

Citation: R. v. Swaminathan , 2015 ONCJ 394 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — THAMILMARAN SWAMINATHAN Before Justice F. Crewe Heard on March 18, 19 and June 19, 2015 Reasons released on July 20, 2015 K. Robertson ............................................................................................................. for the Crown A. Little ........................................................................ for the accused Thamilmaran Swaminathan CREWE J.: A. OVERVIEW [ 1 ] The applicant/accused, Thamilmaran Swaminathan, applies for relief pursuant to

section 11 (

b) of the Charter . Mr. Swaminathan was arrested on January 20, 2014 and charged with the dual offences of operation of a motor vehicle while impaired by alcohol, as well as “drive over 80”. [ 2 ] The information was sworn on February 18, 2014 and ultimately, after 9 “set date” appearances, the first on March 3, 2014, the last on August 26, 2014, a trial was set for March 18 & 19, 2015. [ 3 ] The trial proceeded as scheduled on the above dates, but was not completed.

A continuation date was set for May 29, 2015 and subsequently adjourned to June 19 at the request of the Crown. [ 4 ] The period of delay which the applicant submits is subject to scrutiny is the period commencing with arrest on January 20, 2014, and ending with the trial date of June 19, 2015, a period of 17 months. B. Circumstances of the alleged offences [ 5 ] Officer Moran first noticed the vehicle driven by the Applicant stopped at a red light at the intersection of Kennedy Avenue and Progress Avenue in the city of Toronto, ahead of the stop line, almost into the intersection.

The driver was “ scrunched over ” the steering wheel. The officer reversed direction and followed the vehicle once in motion. The car continued to proceed after the police cruiser’s emergency equipment had been activated, driving at a “ relatively high rate of speed ” and moving back and forth within its lane, but ultimately stopped in a live lane of traffic as it was about to enter highway 401. [ 6 ] The officer immediately detected the odour of an alcoholic beverage, and noted motor difficulties with the production of documents. Although the Applicant had his wallet in hand, he continued to look for it.

He then could not find his driver’s licence, although the officer could see it readily. His eyes were glossy and he was slow to respond to questions and commands. [ 7 ] Officer Moran formed the opinion the Applicant’s ability to operate a motor vehicle was impaired by alcohol and arrested him for that offence at 2:40 a.m. [ 8 ] At 4:31 a.m. he provided the first of two samples of breath, with a reading of 227 mg. alc./100 ml. of blood; the second at 4:56 a.m., with a reading of 218. C.

Chronology of the proceedings [ 9 ] An information charging the applicant with the offences of impaired driving and drive over 80 was sworn on February 18, 2014, four weeks after his arrest. The applicant had retained counsel and requested disclosure in writing on January 29, 2014, well in advance of his first scheduled court appearance of March 3, 2014. The January 29 letter contained a detailed list of items of disclosure being sought, together with a formal assertion of the

section 11 (

b) Charter right. The letter notes, inter alia : “… we are putting your

office on notice that our client is concerned about delay in this matter. We find it unreasonable that his first court appearance isapproximately six weeks after the date of his arrest… As a result of this delay, we trust that the disclosure for this case should beavailable “forthwith” in light of the fact that the investigation of our client was complete on the date of his arrest.” (Application record,Tab 4) [10] Initial disclosure was provided at the first appearance on March 3, 2014. The following day defence counsel wrote afollow-up letter to the Crown Attorney detailing those items of disclosure that remained outstanding, and reasserting the

section 11 (b)Charter right to a trial within a reasonable time. (Application record, Tab 6) [11] At the 2nd appearance, on March 25, defence counsel noted: in order to move this matter forward, there’s a number ofoutstanding items, but specifically what we need is the in car camera video, the release video, the cell video, and the toxicology report. [12] The same day, March 25, a follow-up letter was faxed to the Crown Attorney by Mr.

Little, again expressing concernswith respect to delay, and detailing the disclosure which remained outstanding. [13] On April 15, 2014, the third appearance, the matter was adjourned to May 6 to await the outstanding disclosure. On April20, defence counsel sent, by fax, another follow-up letter requesting the Crown attorney provide the outstanding disclosure. [14] On the following appearance date, May 6, further disclosure was provided, including the video of the Applicant’s releasefrom the police division by the Officer in Charge.

The same date, a follow-up letter was faxed to the Crown attorney requestingoutstanding disclosure, specifically the cell video and CFS report. [15] Through four further court appearances, the first on May 27, the second on June 24, the third July 15, the last (eighthoverall) on August 5, 2014, this request was repeatedly renewed on record, with prompt follow-up written requests on each occasion. The cell video remained unavailable. On August 5, the matter was adjourned to August 26th. [16] Defence counsel was advised on August 6 that the cell video was ready for pickup.

Counsel retrieved the disclosure, conducted a crown pre-trial on August 20th, and on the following appearance date, August 26, 2014, an in Court judicial pretrial washeld and a trial date set. D.

Section 11 (b): the analytical framework [17] The principles that drive applications of this nature are long settled and not in dispute. The factors to be considered are, asset out in R. v. Morin, (1992) (SCC), 71 CCC (3d) 1 (SCC), at para. 31: 1. length of the delay; 2. waiver of time periods; 3. reasons for the delay, including: (

a) inherent time requirements of the case; (

b) actions of the defendant; (

c) actions of the Crown; (

d) limits on institutional resources, and (

e) other reasons for delay, and 4. prejudice to the defendant. E. Analysis Length of the delay [18] The first factor, length of the delay, according to Morin, supra, covers the period from charge to trial. “Charge date” hasbeen held to mean, in this context, the date the information was sworn. (R. v. Kalanj (SCC), [1989] 1 SCR 1594). [19] Mr. Little submits that while Kalanj is often cited for this proposition, it is important to view that case in the context inwhich it was decided, as noted by Duncan, J. in R. v. Egorov [2005] O.J.

No. 6171 (OCJ) wherein he wrote, at Note 2: “The Crown’sfactum contends that the time runs from the swearing of the information, March 25. This position is supported by Kalanj… a case wherethe accused was arrested and released without charge or process. An information was sworn eight months later. But in the case ofrelease on an appearance notice, promise to appear, undertaking or recognizance before officer in charge and the charge being laidthereafter (i.e. the procedure in

section 505 of the Code), it is difficult to see that the accused is not “charged” upon his being subject tothe obligations imposed by the release. Indeed the release document itself refers to him as being an “accused” who is alleged to havecommitted an offence: see forms 9, 10, 11 and 11.1 CC.” [20] In R. v. Nash [2014] O.J. No. 4878 (Ont. SCJ), (affirming Douglas, J., May 2013 (unreported)), Bale J. applies logic

identical to that expressed by Justice Duncan in Egorov. (see para. 5-7). (see also R. v. Vidakovic [2013] (unreported) (OCJ) per Botham,J. at pp. 3-4). [21] Mr. Little further points out that while the Supreme Court of Canada referred to the Kalanj decision in Morin at para. 35,Justice Sopinka did not apply Kalanj on the facts of Morin, and treated the arrest date, for purposes of

section 11 (b), as the start date.(para. 65). [22] In my view the logic inherent in the comments of Duncan, J. and Bale, J. above is unassailable. Mr. Swaminathan wasbound by his formal release as of January 20, 2014, and thereafter liable to prosecution if he failed to comply with the terms of thatrelease. Other immediate consequences flowed, such as the administrative suspension of his license. [23] Furthermore, this is not a case where the investigation was ongoing with the matter at a standstill requiring further stepsbe taken prior to deciding whether to initiate a prosecution.

All necessary investigative steps had been taken, all evidence gathered, andthe accused released on bail. I have been provided no information that leads me to believe the timing of the actual swearing of theinformation was anything other than the result of administrative convenience. In my view, the moment Mr. Swaminathan signed hispromise to appear and left 41 Division Station he was “charged” with an offence within the meaning of

section 11 (

b) of the Charter. [24] If I am wrong in that conclusion, it is nonetheless my view that whether or not Mr. Swaminathan was “charged” onJanuary 20, he had an obligation to attend court, and was therefore entitled to disclosure of the evidence which required his attendance.The formal written request for such disclosure was made nine days after his arrest, and in my view the Crown’s obligation to providedisclosure was triggered, if not on the day of arrest, then at the latest on the date of the written request for disclosure. The clock began torun on the “intake” portion of the overall delay, viewed as neutral in the

section 11 (

b) calculus, on the date of the applicant’s release bythe police. [25] In Morin, supra the Supreme Court set the standard for permissible institutional delay in a routine case such as the instantone at 8 to 10 months.

This period is not a fixed standard, and may be reduced or expanded depending on the particular circumstances ofan individual case. [26] The overall length of the delay in this case is the period from January 20, 2014 to June 19, 2015, a total of 17 months.This is certainly a period of sufficient duration to merit careful examination by this Court in the context of this application. [27] On behalf of the Crown, Ms.

Robertson does not argue that there has been waiver of any periods of delay by the defence.Defence counsel has not offered any evidence of prejudice to his client as a result of the delay, beyond inferred prejudice. Therefore,having regard for the 4 factors set out in Morin, this application falls to be determined by analysis of the reasons for the delay. Reasons for the delay (

a) inherent time requirements of the case [28] This is a relatively routine impaired driving prosecution which was estimated to require one and a half days of court time. [29] The evidence required to prosecute this matter was generated in its entirety the day of the applicant’s arrest. The DVDswhich held the setting of a trial date in abeyance until August 26, 2014 were generated on January 20, 2014. The release video wasprovided on May 6, 3 ½ months later. The cell video was made available on August 6, or 6 ½ months after the applicant’s arrest.

All thatwas required for the Crown to provide full disclosure was the copying of police notes and videos capturing the various interactionsbetween the applicant and the police. These could all have been available for disclosure at the first appearance in court, especiallyhaving regard for the fact the police chose not to have Mr. Swaminathan attend court until 6 weeks after his arrest. (see R. v. Taylor[2013] O.J.

No. 1266 (OCJ) per Green, J. at para. 23). [30] The applicant in this matter had retained counsel, and disclosure had been requested in writing, prior to the firstappearance in court. [31] The inherent time requirements of all cases require that a reasonable time be set aside for intake. This period, inherentdelay, is regarded as neutral in the

section 11(

b) calculus. Mr. Little takes the position that all disclosure and all preliminary matters ought to have been concluded by the 2nd court appearance on March 25, a period of just over two months from the date of arrest.

Ms.Robertson submits the Crown’s obligations commence on the date the information is sworn, February 18, 2014, and that a reasonableintake period, commencing on that date, ought to extend to May 6, 2014, the date upon which the release video was provided to counsel. [32] The authorities have held with regularity that an appropriate and adequate intake period for a routine prosecution, like theinstant case, where the evidence was in place as of the date of arrest, and counsel was retained swiftly thereafter, is one of two months.(see, eg., Morin, supra para 41-3; Lahiry, para. 22; R. v. Meisner [2003] O.J.

No. 1948 (Ont. SCJ), paras. 30-32; R. v. Tran 2012 ONCA18 , [2012]O.J. No. 83 (Ont. C.A.) para. 62; Taylor, supra, para. 26). [33] Ms. Robertson submits that notwithstanding the above, the standard in this jurisdiction has been set at three months,citing R. v. Ireland 2009 ONCJ 57 , [2009] O. J. No. 767 (OCJ). In that case, Robertson, J. held that on the facts of thatparticular case, a reasonable intake period should not exceed a range of 2 to 3 months.(para. 24) [34] I see nothing inconsistent with Justice Robertson’s decision in Ireland and the authorities cited above.

Robertson, J.clearly recognizes the need for a range which takes into account that not all cases are the same: the facts drive the law, not the reverse.The lower end of the range, as with any guideline, would be applied in those cases where all steps necessary to the setting of a trial date(release on bail; retaining of counsel; provision of police notes and other disclosure and reviewing of same; pretrial meetings) canreasonably be accommodated with minimal effort within that period.

That is this case. [35] Applying the above standard to the instant case, an adequate and appropriate allowance for intake would extend (just

over) two months from the date of arrest, January 20, 2014, to the second court appearance on March 25, 2014. [36] I cannot leave this area without brief comment on the seemingly common prosecution practice requiring an accusedperson to make his first court appearance some six weeks (sometimes more) after his arrest and charge. It seems to me, having regard forlong-standing jurisprudence setting a reasonable intake period for routine prosecutions at two months, that if the Crown chooses to allowfully three quarters of that time period to elapse before requiring the case to appear on a court docket, they thereby turn a blind eye to the11(

b) clock. In my view, they do so at their peril. (see, eg., Taylor, supra at para. 23) (

d) limits on institutional resources [37] On August 26, 2014 the trial date was set for March 18 & 19, 2015. Mr. Little indicated on record that he had sought theearliest available dates, and those were the dates provided. He indicated that his client was not waiving his rights under

section 11 (b), infact he asserted them. He and his associate, Mr. Fedorsen, were available on dates in every week and every month from (August 26)until the scheduled trial date. Their earliest availability was on Friday of that same week, August 29. “That’s our availability pursuant toLahiry. In terms of trial readiness within the meaning of that term as laid out in Morin, Sharma, Lahiry, Tran and, more recently, Ralphand other cases. Both Mr.

Fedorsen and myself are both in essence ready to go to trial right now, it would take either one of us no morethan a day to formally prepare this case, and that’s really about it.” [38] In accordance with the Reasons of Code, J. in R. v. Lahiry,(2011) 2011 ONSC 6780 , 283 CCC (3d) 525, atparagraph 26, institutional delay commences when the parties are ready for trial but the system cannot accommodate them. (see also R.v.

Meisner, supra at para 37). [39] On the record before me, therefore, counsel for the applicant was ready to proceed to trial 3 days after the trial date wasset, but space was simply not available. Applicant’s Counsel urges me to conclude that the period of institutional delay commences onthat date, August 29, 2014. The institutional delay to the first scheduled trial date would therefore be six months, 21 days. [40] Crown counsel submits that institutional delay does not commence until 60 days after the setting of the trial date, to allowadequate preparation time.

At a minimum, she submits, counsel could not be ready for trial until 30 days after the setting of the trial date,as the Applicant sought relief pursuant to sections 8, 9 and 10 (

b) of the Charter. Compliance with the rules of court therefore require aminimum of 30 days to trial readiness. [41] Ms. Robertson submits that the institutional delay to the commencement of the trial is at most five months, three weeks,or, if a 60 day period of preparation is recognized pursuant to Lahiry, a period of institutional delay of four months, three weeks. [42] I see nothing in Lahiry imposing an arbitrary 60 day period for trial readiness.

Indeed, Justice Code notes, at paragraph60: “As already discussed at length in my reasons on the Lahiry appeal, systemic delay only begins “when the parties are ready fortrial,…”. (see also R. v. Ralph 2014 ONCA 3 , [2014] O.J. No. 13 (Ont. C.A.) at para. 12) [43] In R. v. Taylor, supra, Justice Green observed, at paragraph 31: “Institutional delay, as said in Morin, at para. 47, “is theperiod that starts to run when the parties are ready for trial but the system cannot accommodate them”.(See, also, R. v.

Lahiry, supra atpara. 26…) Put otherwise, the institutional delay clock begins to run not when counsel is ready to fix a date for trial but, rather, when heor she is available and prepared to conduct that trial. In Lahiry, at para. 31, Code, J. rightly observed that, “in routine drinking anddriving cases, the amount of time needed to prepare for a short trial is not great”.

Nonetheless, in the absence of a clear record as tocounsel’s availability courts have frequently subtracted two weeks to a month from the interregnum between a trial date and the date onwhich it was set to at least nominally allow for defence counsel preparation and availability. There is no need to resort to such legalfictions in the matter before me. Counsel for the defendant expressly indicated on April 20, 2012 that he was ready to proceed to trialsome six days later, on April 26.

Given the routine nature of this prosecution, the ample preceding opportunity to review thedisclosure brief and the vast experience of counsel in similar cases, I have no reason to doubt the sincerity of his proffer. (Emphasisadded) [44] Justice Green therefore treated the period of institutional delay as commencing upon counsel’s first indicated availabledate, April 26, 2012. [45] I am persuaded by the reasoning of Justice Green in Taylor. The reasoning contained within the highlighted portion of thequote above apply with equal force to the case before me. (see also R. v.

Flak [2014] unreported (OCJ), per Maresca, J. at paras. 40-43) [46] The Supreme Court of Canada in Morin, supra noted at para. 41 that in allotting an appropriate period for inherent time:“The amount of time that should be allowed counsel is well within the field of expertise of trial judges.” I am satisfied, as were the trialjudges in Taylor and Flak, that counsel was ready to conduct the trial when he says he was, on August 29, 2014. [47] A brief comment with respect to compliance with time requirements established by court rules: While these rules exist forgood reason, and are to be strictly complied with where possible, in my view they must give way to constitutional imperatives such as theright to a trial within a reasonable time. (see, eg.

R. v. Nash, supra per Douglas, J. at p. 148-9). [48] Therefore, the institutional delay in this case commences on August 29, 2014 and extends to March 18, 2015, a period ofsix months, 21 days. [49] A further period of institutional delay must be apportioned to the delay between March 19, 2015 and June 19, 2015 a totalperiod of three months. The continuation date initially set for May 29 was adjourned at the request of the Crown.

The additional threeweeks are to be attributed to Crown/institutional delay. [50] Further, it is necessary to consider whether to apportion under the heading “institutional delay” a portion of that timebetween March 19 and the initially scheduled continuation date of May 29. Simply applying the principles in Lahiry, institutional delaywould commence after the first date upon which defence counsel was available. Mr. Little indicated on March 19 that he had available

dates in every intervening week. However, he concedes that some portion of that two months, perhaps one month, ought to be attributedto inherent delay, in view of the fact the initial time estimate of 1 ½ days was insufficient, and further having regard for the fact the trialcoordinator offered certain dates prior to May 29 in which he was unavailable. Ms. Robertson contends the entire two months, 10 daysought to be viewed as inherent delay. [51] However I decide this issue, not more than minimal impact upon the ultimate outcome of this application will result.

Theinitial adjournment of two months, 10 days seems, on its face, to address the requirements set by the Court of Appeal for Ontario in R. v.Brace 2010 ONCA 689 , [2010] O.J. No. 4474 and R. v. Satkunananthan (ON CA), [2001] O.J. No. 1019,that when a matter is adjourned, all necessary steps be taken to ensure that the trial re-commence without further delay. [52] Although clearly arbitrary, I simply “split the difference”, and attribute an additional three weeks of that ten week periodto institutional delay, the remainder to inherent delay. (

c) actions of the Crown [53] The final period under consideration in this application and indeed, in my view the critical period, is therefore the fivemonths between March 25, 2014 and August 26, 2014. Mr. Little takes the position that the entirety of this period of delay lies at the feetof the Crown, in view of its failure to provide requested and readily available disclosure in a timely fashion. Ms. Robertson takes theposition that the period of delay commencing after May 6, the date upon which the release video was provided, was caused by thedefence, as they ought to have set a trial date thereafter. [54] Ms.

Robertson has conceded the relevance of the release video, and as it was not provided until May 6, I conclude that at minimum the period between March 25, 2014, the end of the intake period, and May 6th constitutes Crown delay. [55] The critical piece of outstanding disclosure between May 6 and August 6 was the cell video. This was requested byapplicant’s counsel in writing on January 29, and repeatedly thereafter, both on record and in writing.

This video was generated onJanuary 20, and I fail to understand why it took fully 6 ½ months before Crown counsel made it available to the applicant. [56] Defence counsel takes the position that he would be irresponsible and in dereliction of his duty to his client had he set adate for trial in the absence of the cell video. [57] In support of this submission counsel relies upon R. v. Mok 2014 ONSC 64 , [2014] O.J. No. 44 (Ont. SCJ).Sitting as a

summary conviction appeal Judge, Boswell, J. agreed with the trial judge’s conclusion that the monitoring and videotaping ofdetainees using the cell toilet by police officers of either gender is a “highly intrusive invasion of privacy”, and constituted a violation ofMs. Mok’s

section 8 right. Nevertheless, in the circumstances of that case, Justice Boswell did not uphold the trial judge’s imposition ofa stay of proceedings, and held that the police ought to be provided an opportunity to make appropriate changes to the manner in whichpeople are videotaped in cells. Future applications for stay of proceedings are therefore not precluded. Further, other remedies can besought short of a stay of proceedings, including exclusion of evidence pursuant to section 24(2) (eg. - R. v. Deveau [2013] ONCJ 644); orperhaps a reduction in penalty, although likely not a mandatory minimum. (R. v.

Nasogaluak 2010 SCC 6 , [2010] 1 SCR 206.) [58] In R. v. Malik [2014] O.J. No. 355 (Ont. SCJ) Justice Ricchetti reviewed both the trial and appellate decisions in Mok,and concluded that by failing to view the cell video of Ms. Malik, defence counsel’s actions fell below the standard expected of defencecounsel when representing an accused. Further, at para. 21:“Disclosure is fundamental to counsel’s ability to properly advise andrepresent an accused.

It is expected and it is reasonable that counsel would review all the Crown disclosure before providing any adviceto an accused as to whether to plead guilty or not.” [59] Justice Ricchetti set aside Ms. Malik’s plea of guilty and ordered a new trial. [60] In addition to these concerns, Mr. Little submits, including the above-noted duty to review all available evidence prior toproviding informed advice to the client, it is part of counsel’s function to responsibly estimate the court time required for trial.

Therefore,he submits, if upon disclosure and review of the cell video, he were to form the opinion that a further Charter application would bewarranted, the calling of further evidence and the further review of case law would require additional court time, conceivably aconsiderable amount. [61] Ms. Robertson submits first of all that the disclosure of the cell video is not necessary to the setting of a trial date, and theresponsible course of action for defence counsel would be to set the trial date without the video disclosure and simply revisit the issue ofrequired court time once the video has been provided.

I disagree. I do not understand why the Crown simply ignores repeated requests bycounsel for disclosure that is readily available, which is clearly relevant as per the above authorities, and which counsel has been told, bya Justice of the Superior Court, that he ignores at his own professional peril.

It is further worthy of note that upon being advised of theavailability of the oft-requested cell video, by the next scheduled court appearance counsel had conducted a crown pre-trial was readyand prepared to set a trial date. [62] The conduct of the Crown in this case therefore caused the entire period of delay from March 25 to August 26, a total offive months, through its intransigence with respect to the provision of readily available disclosure. [63] When added to the institutional delay of six months, 21 days, the combined Crown/institutional delay prior to the initialtrial date is 11 months, 22 days. [64] Delay caused by actions (or inactions) of the Crown have generally been viewed by courts with a more jaundiced eye thaninstitutional delay.

In R. v. Brown [2005] O.J. No. 2395, Justice MacDonnell noted: “I regard the other Crown delay as weighing very

heavily against the state. Unlike institutional delay, the other Crown delay was not beyond the control of the individual state actors whocaused it. It was the direct result of a simple failure of the police to do their job. As a matter of common sense, that weighs heavilyagainst the Crown: see, eg., R. v. McNeilly [2005] O.J. No. 1438 (Ont.S.C., per Hill, J., at paragraph 72. [Emphasis added.] (

b) actions of the defendant [65] The applicant did not cause any delay, beyond bearing some responsibility for somewhat underestimating the trial timerequired. Prejudice [66] As noted above, the defence asserts no prejudice specific to the applicant in this case, beyond inferred prejudice, whichhe submits is substantial in view of the inordinate delay having this matter brought to trial. [67] In my view, having regard for the applicant’s assertion of his

section 11(

b) concerns, in writing, on January 29, 2014, andthe inexplicable passage of a further seven months before being put in a position whereby, having finally been provided said disclosure,he could set a trial date, which could then not be accommodated just shy of another seven months, the inference of inferred prejudice inthese circumstances is irrebuttable. I say this having regard for the consideration of this issue in the seminal authorities of Morin, supra;R. v. Askov (SCC), [1990] SCJ No. 106 (SCC), R. v. Godin 2009 SCC 26 , [2009] S.C.J. No. 26 (SCC), tomention but a few.

Conclusion [68] The total delay in this case, combining the institutional delay with that caused by the Crown Attorney, is 11 months, 3weeks leading up to the first trial date, with an additional six weeks of delay between the initial trial date and the continuation. The totalinstitutional/Crown delay, therefore, to the second trial date is 13 months, 1 week. [69] The crown alone is responsible for 5 months, three weeks of that overall delay. In R. v.

Collins and Pelfry (1995) (SCC), 99 C.C.C. (3d) 385 (SCC), the Supreme Court of Canada reversed the Court of Appeal for Ontario and upheld theTrial Judge’s stay of proceedings in a prosecution for second degree murder where the Crown had caused considerable delay, includingdelayed disclosure, of between 5 & 10 months. [70] I am instructed by appellate courts that an important consideration in the determination of these applications is theseriousness of the present offences, and I am to have regard for the societal harm wrought by impaired drivers when balancing theinterests of the applicant against society’s interest in a trial on the merits. (see, eg., R. v.

Bernshaw (SCC), [1995] 1SCR 254 at para 16, and R. v. Lahiry, supra at para 89.) [71] On the other hand, as noted by Pringle J. in R. v. Avellaneda [2014] O.J. No. 1369 at para. 40: “Although I appreciatethat the charges are serious ones, I agree with the defence that in those circumstances the state should have done whatever it could toensure that the matter came on for trial in a more timely way.

It is a two-edged sword for the Crown to rely on the seriousness of thecharges as an important factor in the balancing equation when the case was not important enough to provide timely disclosure or givethe case priority in the court calendar.” (see also R. v. Kporwodu (ON CA), [2005] O.J. No. 1405 (Ont. C.A.) atpara 189-194, and Collins and Pelfry, supra). [72] I note as well that fully 23 years have passed since the Supreme Court of Canada released Morin, supra.

In Meisner,delivered in 2003, Justice Hill observed: “Given that the government has had well over a decade of experience in dealing with trial delayin Peel, the amount of constitutionally tolerable institutional delay for a trial in the Ontario Court of Justice should be about eightmonths with such delay generally not exceeding about nine months.” Many courts have since recognized a reduced period of acceptableinstitutional delay. [73] Further, in its submissions to the Supreme Court of Canada in Morin, the Attorney General of Ontario undertook to theCourt that it was aiming at institutional delay of no more than 6 to 8 months in provincial Court.

Yet 23 years later, the instant caserequired a full 7 months before the applicant was placed in a position whereby he could set a date for trial, much less complete it. [74] On this application, the onus lies with the applicant. In all the circumstances of this case, it is my view that the applicanthas established a breach of his right to a trial within a reasonable time. Had this application been brought at the time of the first trial date,March 18, 2015, I would have reached the same conclusion on the record before me. The application is granted. The proceedings aretherefore stayed.

Released: July 20, 2015 Signed: “Justice F. Crewe”