R. v. Lalani, 2014 ONCJ 10

COURT FILE No: 12-010220 DATE: 2014-01-09 Citation: R. v. Lalani , 2014 ONCJ 10 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — AMINMOHAMED LALANI Before Justice J. Stribopoulos Heard on December 11, 2013 Reasons for Judgment released on January 9, 2014 S. Stackhouse ………………………………… … for the Crown / Respondent. R. Silverstein …...……………………………….. for the Defendant / Applicant. I. Introduction [ 1 ] On August 13, 2012 Mr. Lalani was charged with driving a motor vehicle with a blood alcohol level over the legal limit, contrary to section 253(1) (

b) of the Criminal Code . [ 2 ] A trial date was initially scheduled for September 13, 2013. The case could not be reached on that date and was adjourned. A second trial date is now scheduled for June 26, 2014. [ 3 ] On December 11, 2013 Mr. Lalani appeared before me, was arraigned and pled not guilty to the charge. He applied for an order staying the proceedings, arguing that his right to be tried within a reasonable time, guaranteed by

section 11(

b) of the Charter , has been violated. These are my reasons with respect to that application. [ 4 ] This is a routine drinking and driving case. Shortly after midnight on August 8, 2012, police investigated Mr. Lalani when he was observed driving away from a licensed establishment. An odour of alcohol and an admission of drinking led to a roadside breath demand. Mr. Lalani’s breath sample registered a fail on the approved screening device. This led to a demand to furnish a further breath sample for analysis by an approved instrument. The results led to the charge currently before the court. The trial of this matter is expected to last a day.

[ 5 ] The total delay between Mr. Lalani being charged and his now scheduled trial date is slightly more than 22 ½ months. In my view, this delay is of a sufficient length to raise an issue as to its reasonableness and warrants closer scrutiny. [1] II. Chronology of the Case [ 6 ] The police investigated Mr. Lalani on August 8, 2012. The charge against him was formally initiated with the swearing of the information on August 13, 2012. [ 7 ] August 17, 2012 was the first scheduled court date. On that date, defence counsel’s student attended, filed a designation and appeared on Mr. Lalani’s behalf.

At that time, the Crown provided initial disclosure and the defence requested a 3-week adjournment in order to review it. [ 8 ] On August 27, 2012, defence counsel wrote the Crown to advise of two deficiencies in the disclosure. First, the notes for one of the police officers involved in the investigation were illegible. Accordingly, the defence asked for a typed will-say statement for that officer. The defence also requested the notes of a second police officer. [ 9 ] On September 7, 2012 the matter was back in court.

The Crown confirmed receipt of the defence’s request for additional disclosure and indicated that the request had been sent on to the police. The case was therefore adjourned three weeks to await the additional disclosure. [ 10 ] The next court appearance was on September 28, 2012. By that point the Crown had still not received the additional disclosure. The prosecutor indicated that the Crown’s Office would follow up with the police that day.

As a result, the case was adjourned three more weeks, to await receipt of the additional disclosure. [ 11 ] The Crown provided some additional disclosure to the defence when the matter was again in court on October 19, 2012. On that date the defence requested a three-week adjournment to review the newly disclosed material. The matter was adjourned to November 9, 2012. [ 12 ] On November 2, 2012 the Supreme Court of Canada released its long anticipated judgment R. v.

St - Onge Lamoureux . [2] In that decision the Court dealt with a constitutional challenge to Criminal Code amendments enacted by Parliament in the Tackling Violent Crime Act [3] which imposed restrictions on evidence to the contrary that is admissible at a trial involving a charge of driving with a blood alcohol level over the legal limit. [ 13 ] The majority in St-Onge Lamoreux concluded that key components of the amended subsection 258(1)( c ) – which prescribed three separate and cumulative new requirements that the accused must satisfy to rebut the presumptions of accuracy and identity – infringed the presumption of innocence guaranteed by s. 11(

d) of the Charter . After severing much of the offending language found in subsection 258(1)( c ) – in particular, the words “all of the following three things —” and “, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed”, the majority concluded that what remained was a reasonable limit on the presumption of innocence and was demonstrably justified under

section 1 of the Charter . [ 14 ] In the aftermath of St-Onge Lamoreux an accused charged with “over 80” can endeavor to obtain a dismissal of the charge by raising a reasonable doubt through evidence tending to show that the approved instrument was malfunctioning or was operated improperly. [ 15 ] For present purposes, it is noteworthy that in the course of her majority judgment in St-Onge Lamoreux , Deschamps J. made the following observation: [78] Although Parliament now requires evidence tending to establish a deficiency in the functioning or operation of the instrument, this does not mean that there are limits on the evidence that can reasonably be used by the accused to raise a doubt in this regard.

The

accused can request the disclosure of any relevant evidence that is reasonably available in order to be able to present a real defence. Ifthe prosecution denies such a request, the accused can invoke the rules on non-disclosure and the available remedies for non-disclosure(see R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411).

In short, the accused might rely, for example, on a maintenance logthat shows that the instrument was not maintained properly or on admissions by the technician that there had been erratic results, or he orshe might argue that health problems had affected the functioning of the instrument (see R. v. Kasim, 2011 ABCA 336, 515 A.R. 254). [16] In the immediate aftermath of St-Onge Lamoreux, a telephone pre-trial took place between defence counsel and Crowncounsel.

Following that, on November 6, 2012, defence counsel wrote to the Crown to request additional disclosure relating to theapproved instrument – an Intoxilyzer 8000C – used by police during their investigation of Mr. Lalani.[4] [17] The Crown responded to this request in a letter dated November 8, 2012. In that letter, the Crown contested the relevance ofmuch of the requested disclosure.

Nevertheless, citing a desire to “avoid unnecessary litigation” and “without conceding relevance” theCrown agreed to provide “’a standard historical disclosure package’ that contains service and maintenance records, calibrationcertificates, and documentation relating to a number of calibration checks immediately preceding and immediately following the testing”of Mr. Lalani.

Further, the Crown advised that defence counsel could obtain a copy of the training manual for the Intoxilyzer 8000C bycontacting the Centre of Forensic Sciences in Toronto. [18] Also on November 8, 2012, the Crown faxed defence counsel a copy of the typed notes of the investigating police officerwhose handwritten notes in the initial disclosure packet were illegible. (It will be remembered that the defence had informed the Crownof this deficiency in the initial disclosure by way of a letter dated August 27, 2012.) [19] The next appearance was on November 9, 2012.

On that date the Crown provided some additional disclosure.[5] The defenceresponded by requesting an adjournment. The purpose of the adjournment was twofold: to review the disclosure just provided and allowan opportunity for the recently submitted disclosure request to be filled. [20] When the matter was back in court on November 30, 2012, Mr. Silverstein’s articling student appeared. He asked that a judicialpre-trial be scheduled, indicating that “Mr.

Silverstein is of the view that this case is going to require a judicial pre-trial to work out somedisclosure issues.” The court offered a number of dates, beginning with December 4, 2012. Unfortunately, the first available dateoffered for a judicial pre-trial that was also available to defence counsel was January 22, 2013.[6] [21] On January 22, 2013 the matter was back in court for the purposes of a judicial pre-trial.

At the outset of that appearance Mr.Silverstein indicated: “There’s some further disclosure issues that have to be ironed out and I think that’s why the matter was set for ajudicial pre-trial.” The outstanding disclosure was the material requested by the defence on November 8, 2012, the records relating tothe approved instrument and its operation. The Crown advised that the disclosure would be provided and that he “would light a fireunder this request”. Mr. Silverstein expressed a willingness to set a trial date before the outstanding disclosure was provided, noting thatthere were

section 11(

b) concerns. It was further agreed that if there was any difficulty in securing disclosure an application would bebrought by the defence in advance of the scheduled trial date. Finally, the parties agreed that the matter would take a day for trial. Thefirst available date offered by the court was September 11, 2013. That date was not available to Mr. Silverstein. The next date offered,that was available to the defence, was September 13, 2013.

As a result, the matter was adjourned to that date for trial. [22] The additional disclosure relating the approved instrument was ultimately provided to the defence on March 8, 2013. [23] The scheduled trial date, September 13, 2013, was an especially busy day in the Ontario Court of Justice here in Brampton. Defence counsel, Mr. Lalani and his wife were all present throughout the day. His matter was not called until 3:00 p.m.

At that point, theCrown advised that the case was not going to be reached and it was agreed that a new date should be set. [24] The first date offered by the court was October 4, 2013, but that date was not available to the defence. The next date offered bythe court was December 11, 2013; that date was available to the defence. In setting the new date, Mr. Silverstein expressed reservations;noting that his client is of modest means and worrying that he might not be able to muster the funds to retain him by the rescheduled trialdate. As a result, Mr.

Silverstein suggested an interim appearance, in order to confirm the December 11, 2013 trial date. As a result, thematter was adjourned to October 18, 2013, with December 11, 2013 earmarked as a target date for the trial. [25] On October 18, 2013 Mr. Silverstein appeared along with Mr. Lalani. Mr. Silverstein advised that Mr. Lalani was simply not

going to be able to retain him in time for the scheduled December 11, 2013 trial date. He suggested maintaining the December 11, 2013 date for the purpose of arguing a

section 11(

b) Charter application, indicating that he believed his client would be in a position to retain him for that purpose by that date. A new trial date was set for June 26, 2014. Mr. Siverstein indicated that, “that’s as soon as I think my client can come up with the retainer, so he can have counsel for the trial should one be necessary.” [ 26 ] The

section 11(

b) Charter application was argued before me on December 11, 2013. I reserved my decision and the case was adjourned to today’s date, January 9, 2014. III. Law and Analysis [ 27 ]

Section 11(

b) of the Charter provides that, “[a]ny person charged with an offence has the right to be tried within a reasonable time.” [ 28 ] In Morin , the Supreme Court of Canada explained that

section 11(

b) is primarily meant to protect individual rights, while acknowledging that it also serves societal interests. [7] [ 29 ] In terms of protecting the individual, the Court identified the various ways in which the guarantee safeguards those who are charged with a crime. First, it helps to protect the right to security of the person by reducing the risk of overlong exposure to the anxiety, concern and stigma that are, for most accused, the inevitable by-product of a criminal charge.

Second, it protects the liberty of those charged by seeking to minimize their exposure to pre-trial detention or restrictive bail conditions. Finally, it protects the right to a fair trial by increasing the likelihood that trials will take place while evidence is available and fresh. [8] [ 30 ] The Supreme Court also explained the societal interest served by

section 11(

b) in terms of our shared desire to see those accused of crime treated fairly and humanely. It noted that promptly held trials assist in maintaining public confidence in the administration of justice. At the same time, the Court acknowledged that in this context there is also a societal interest that is in direct tension with the interests of those who break the law; a need for offenders to be held accountable for their transgressions. The Court noted that the public’s demand that law-breakers be held accountable increases with the seriousness of the crime. [9] [ 31 ] In Morin the Supreme Court eschewed the use of mathematical or administrative formulas in deciding whether

section 11(

b) has been violated. Instead, the Court recognized the need for an approach that balances “the interests which the

section is designed to protect against the factors which either inevitably lead to delay or are otherwise the cause of delay.” [10] The Court identified the relevant factors to be considered in making this determination. Those factors supply the analytical framework for the remainder of these reasons. 1. Length of the Delay [ 32 ] In calculating the total delay for

section 11(

b) Charter purposes the relevant period is the date of the charge until the completion of trial or, in a case like this one, where the application is brought in advance of the scheduled trial date, the anticipated completion of trial. [11] [ 33 ] The information charging Mr. Lalani was sworn on August 13, 2012. The trial of this matter is currently scheduled for June 26, 2014. Accordingly, the total delay in this case is a period of approximately 22 ½ months. 2. Waiver of Time Periods [ 34 ] The defence has filed the transcript for each and every court appearance in this matter.

I have carefully reviewed these transcripts. In my view, there has been no agreement or conduct by the defence that could fairly be characterized as amounting to either an express or implied waiver of any of the delay in this case. [12] [ 35 ] To be clear, as I will explain more fully below, I am of the view that certain actions by the defence have, at least in part,

contributed to the delay in this case. However, I do not believe that any of these actions are of such a nature that they could be fairly characterized as amounting to a waiver of the delay. [ 36 ] To the contrary, to the extent that

section 11(

b) is referenced in the transcripts it is in the context of defence counsel voicing concerns about mounting delay and expressing a desire to move the matter along in an expeditious fashion. [ 37 ] In short, there has been no waiver of the delay in this case. 3. Reasons for the Delay [ 38 ] I am next required to scrutinize the reasons for the delay in this case. In Morin , in explaining how the reasons for delay should be catalogued and assessed, the Supreme Court identified a list of relevant variables, including the: (

a) inherent time requirements of the case; (

b) actions of the accused; (

c) actions of the Crown; (

d) limits on institutional resources, and (

e) any other reasons for the delay. [13] I will address each of these factors in turn. (

a) inherent time requirements [ 39 ] I will begin with the inherent time requirements of the case. There are a number of closely related variables that will influence the amount of time that is characterized as part of inherent delay. [ 40 ] First, there are certain intake requirements that are part and parcel of every criminal case. The person charged must retain a lawyer, disclosure must be provided, counsel must have an opportunity to review the disclosure, interview witnesses, conduct legal research and participate in any necessary pre-trial discussions.

Ultimately, counsel will also require some time to prepare for trial. In that regard, it must be remembered that the lawyers cannot devote themselves exclusively to any single case. A court examining the procedural history of any criminal matter must be alive to this reality in deciding on the amount of time that should be treated as part of the inherent delay of a given case.

Further, the number of steps and the amount of time required for each will often vary as a function of the seriousness of the charge and the complexity of the case. [14] [ 41 ] In Morin the Supreme Court recognized that the length of time to be treated as part of the inherent time requirements for a given case would also be influenced by local practices and conditions.

As a result, the period will tend to be the same in a particular region for most offences, but with some variation between some categories of offences. [15] [ 42 ] So, for example, in Peel Region, two months has been described as the ordinary intake period for a routine drinking and driving allegation. [16] As a result, prior to November 2, 2012, I would have concluded that two months was the appropriate period of time to attribute to inherent delay in this case.

However, as explained above, the Supreme Court’s decision in St-Onge Lamoreux complicated the matter somewhat by altering the legal landscape with respect to the charge that Mr. Lalani was facing. Developments in this case following the Supreme Court’s decision bare this out. [ 43 ] In the aftermath of that decision the parties required some time to absorb the Supreme Court’s judgment and consider its implications for their respective positions. So, for example, the decision in St-Onge Lamoreux led defence counsel – understandably in my view – to ask for additional disclosure almost three months after Mr.

Lalani’s first court appearance. Uncertainty about how to proceed while that disclosure remained outstanding also led the defence to arrange for a judicial pre-trial, which would not ordinarily have been necessary in a routine drunk driving case. [ 44 ] In light of the complicating implications of St.-Onge Lamoreux , I think three months of the delay in this case are fairly attributed to inherent delay. (

b) actions of the accused [ 45 ] After carefully considering each procedural development in this case, I am of the view that some of the delay in this matter is appropriately attributed to the defence. Before explaining why, I think it useful to remember what the Supreme Court of Canada said in

Morin regarding this variable, which Sopinka J. explained in this way: This aspect of the reasons for the delay should not be read as putting the “blame” on the accused for certain portions of the delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this

section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc.

I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable. [17] Remembering the sort of actions that will result in the attribution of delay to the defence, I turn to the circumstances in Mr. Lalani’s case. [ 46 ] First, there is the period as between November 30, 2012 and the judicial pre-trial on January 22, 2013. A judicial pre-trial was not required in this case.

In this jurisdiction, a judicial pre-trial is only mandatory in cases that are anticipated to last longer than a day. That said, as I explained above, in light of St.-Onge Lamoreux and the outstanding disclosure, in my view, the request for a judicial pre- trial was entirely reasonable. [ 47 ] The difficulty, however, was that defence counsel was not available on any of the earlier dates offered by the court for purposes of the judicial pre-trial. Mr.

Silverstein argues that the resulting delay of approximately six weeks from the first date offered by the court (December 4, 2012) to the first date offered that he was also available (January 22, 2013) should be treated as institutional delay. He contends that the scheduling difficulty arose because the court was only in a position to offer dates that fell on Tuesdays, [18] and that although he had plenty of earlier dates, the first Tuesday offered that was also available to him was January 22, 2013. Mr.

Silverstein argues that the delay occasioned by this arbitrary scheduling practice should not be attributed to the defence. [ 48 ] The Supreme Court Canada has noted that, “[s]cheduling requires reasonable availability and reasonable cooperation” however “it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetual availability”. [19] At the same time, as the British Columbia Court of Appeal has sensibly noted, the “Crown is not responsible for delay caused by defence counsel’s calendar”. [20] I think that these two propositions, which make equally good sense, suggest that the delay waiting on the judicial pre-trial in this case should be apportioned equally as partly institutional and partly defence occasioned.

In short, there was shared responsibility for this delay given the limited number of dates offered by the court and defence counsel’s limited availability. Hence, I will attribute three weeks of the resulting delay as institutional and three weeks to the defence. [ 49 ] The next period of delay that I believe should be apportioned to the defence, as it results directly from a scheduling request made by Mr. Lalani, is the approximately six and one-half month period from December 11, 2013 to June 26, 2014. [ 50 ] Mr. Silverstein argues that this period should be treated entirely as institutional delay.

In making this argument, he notes that the only reason why such a long adjournment is necessary is because his client requires this time to raise the funds needed to properly retain him before the second scheduled trial date. Had Mr. Lalani’s trial taken place on the originally scheduled trial date, September 13, 2013, there would have been no need to pay counsel a second time. As a result, Mr. Silverstein argues that this six month delay should be considered institutional, as it was the justice system’s failure to accommodate Mr.

Lalani’s trial when scheduled that has led directly to the need for this lengthy adjournment. I have carefully considered Mr. Silverstein’s argument. In the end, I do not find it persuasive. [ 51 ] I am not convinced that the only solution for the situation faced by Mr. Lalani was a long adjournment. Mr. Silverstein is counsel of record in this matter. Absent an application to be removed as such, he is obligated to represent his client until the client’s case is completed. [21] Although I can entirely understand Mr.

Silverstein’s desire to replenish his retainer before the next trial date, I do not believe that the resulting delay can fairly be characterized as institutional. Another available option was for Mr. Lalani to borrow the necessary funds to pay his counsel and to charge ahead with his trial on December 11, 2013. Alternatively, although undoubtedly less palatable for counsel, the trial could have proceeded and Mr. Lalani could have made efforts in its aftermath to pay counsel for his services. This is exactly what the Court of Appeal seemed to contemplate in R. v.

Chatwell . [22] There, like here, the defence sought an adjournment to sort out counsel’s retainer. In rejecting a claim that the resulting delay should be characterized as institutional, the Court indicated that: … it seems to us that counsel who remains unpaid - whether by Legal Aid or otherwise - should either proceed to discharge his professional responsibilities and proceed to trial or, if he is sufficiently concerned about non-payment, should seek to remove himself from the record.

At the very least, if counsel does neither but rather seeks an adjournment in order to clarify his financial position, the resulting delay cannot properly be seen as institutional for the purposes of s. 11(

b) of the Charter . Rather, it must appropriately be treated as the responsibility of the defence. [23]

I recognize that, unlike here, delay did not play any role in creating the retainer issues in Chatwell . Nevertheless, I think the Court’s approach is applicable in the context of this case. [ 52 ] To be clear, I do not mean for my comments to be taken as criticism of either Mr. Silverstein or Mr. Lalani for making the choice they did when faced with the unfortunate need to make arrangements for a second trial date. As the Supreme Court emphasized in Morin , this is not about assigning blame.

The discrete issue I am required to deal with in this portion of my analysis is whether or not the resulting delay should be attributed to the conduct of the defence or characterized as institutional. In my view, given that it was the defence that sought to postpone the trial from December 11, 2013 until June 26, 2014, the resulting six and one-half months of delay belongs on the defence side of the

section 11(

b) ledger. [ 53 ] Finally, a word about the delay between October 4, 2013 and December 11, 2013. It will be remembered that when Mr. Lalani’s case was not reached on the first scheduled trial date, the court offered two further dates for trial. The first date offered was October 4, 2013. However, that date was not available to defence counsel. The next date offered was December 11, 2013, which was agreeable to both the Crown and the defence. I considered whether or not the two-month period between those dates should be attributed to the defence.

However, in light of the Supreme Court’s decision in Godin , I do not think that that would be appropriate. As the Court explained, scheduling requires “reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetual availability”. [24] The Court adopted Glithero R.S.J.’s comments, dissenting at the Court of Appeal for Ontario in Godin , in which he stated that: “To hold that the delay clocks stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.” [25] Given these comments, I am of the view that the entire three-month period from the first scheduled trial date on September 13, 2013 to December 11, 2013 should be treated as institutional delay. [26] (

c) actions of the Crown [ 54 ] I turn next to consider the actions of the Crown. Like with the conduct of the accused, the Supreme Court of Canada made clear in Morin that, “this factor does not serve to assign blame.” [27] Rather, as Sopinka J. explained: This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure , change of venue motions, etc.

An example of action of this type is provided in Smith , supra , where adjournments were sought due to the wish of the Crown to have a particular investigating officer attend the trial. As I stated in that case, there is nothing wrong with the Crown seeking such adjournments but such delays cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable. [28] [ 55 ] Here, the initial package of disclosure provided to the defence on the first appearance was deficient. The notes disclosed for one of the police officers involved in investigating Mr. Lalani were illegible.

By way of a letter dated August 27, 2012 the defence wrote to the Crown to alert them of this deficiency. Unfortunately, it took nearly two and one-half months for the notes to be typed up by the officer and provided to the defence. [ 56 ] On behalf of the Crown, Ms. Stackhouse argues the delay in furnishing a typed version of the officer’s illegible notes should not be attributed to the Crown. She contends that the Crown’s disclosure obligation was discharged when it furnished the defence with what it had in its possession, that being a copy of the notes from the officer’s notebook.

On this view, the provision of the typewritten notes was simply a courtesy and therefore there was no delay in furnishing required disclosure. Hence, the two and one-half month wait for the typewritten notes should not be attributed to the Crown for purposes of the

section 11(

b) analysis. [ 57 ] I disagree with Ms. Stackhouse’s characterization of the Crown’s disclosure obligation.

The Crown has a duty to disclose to an accused “all relevant information ” in its possession or under its control. [29] In order to discharge this duty the Crown is under an obligation to request and procure from the police all relevant information and material concerning the case. [30] As a result, in my view, the provision of a typed version of one of the investigative officer’s notes where that officer’s handwritten notes were illegible was more than simply a courtesy; it was part of the Crown’s disclosure obligation. [ 58 ] In attempting to resist attribution to the Crown of the two and one-half month delay occasioned by late disclosure, Ms.

Stackhouse argues that a trial date could have been scheduled without the typewritten notes. She cites the Court of Appeal’s decision in R. v. Kovacs-Tatar [31] to support her argument that the outstanding disclosure should not have prevented defence counsel from scheduling a trial date and moving the case forward. The accused in Kovacs-Tatar was a chiropractor charged with sexually assaulting one of his patients. Within three to four weeks of his first appearance the accused was provided with initial Crown disclosure, including the complainant’s videotaped statement.

A few months after the first appearance, the Crown advised that it had retained the services of a medical expert to prepare a report. The Crown wanted to proceed to set a trial date. Defence counsel, however, insisted on awaiting receipt of the expert report before setting a trial date. In addressing the resulting delay, the Court of Appeal said the following: Something should be said about counsel's refusal to set a date because the expert report was not available. The Crown is obliged to make

initial disclosure before the accused is called upon to plead or to elect the mode of his trial. See the comments of Sopinka J. in R. v.Stinchcombe (1991), (SCC), 68 C.C.C. (3d) 1 (S.C.C.), at pp. 13 -14. In this case, since the Crown had elected toproceed summarily, election of the mode of trial was not an issue. Having regard to the length of time before trial, the appellant's counselknew the expert's report would be completed many months before the appellant had to plead and the appellant would have had ampletime to obtain his own expert's report had he wished to do so.

Also, because the obligation of the Crown to make disclosure is acontinuing one, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. The defence was not forfeiting its"Stinchcombe rights" by agreeing to set a trial date. Counsel for the appellant did not act reasonably in insisting that he receive the expertreport before setting a trial date.[32] [59] I think the situation here is rather different. First, the illegible notes were those of one of two police officers involved ininvestigating Mr. Lalani on the night of his arrest.

In other words, this was rather important, basic, initial disclosure. It would be ratherunderstandable for the defence to want these notes before setting a trial date, after all the contents could be essential to determiningwhether or not there was a viable defence to the charge. Further, unlike in Kovacs-Tatar, there is nothing in this record to suggest thatdefence counsel might have been attempting to exploit the outstanding disclosure to manufacture delay. To the contrary, even though thedisclosure relating to the Intoxilyzer 8000C was still outstanding in January 2013, the defence readily agreed to

schedule a trial date andobtain the remaining disclosure in the interim. As a result, I am of the view that the delay of two and one-half months awaiting initialdisclosure to be completed is properly attributable to the Crown. (

d) limits on institutional resources [60] In Morin the Supreme Court identified 8 to 10 months of institutional delay in the provincial court as a guideline to assist trialjudges in adjudicating

section 11(

b) Charter claims. It explained that this time period is not meant to be an inflexible limitation period; itis simply a guideline. As such, the Court expressly contemplated that trial courts in different regions across the country might adjust theperiod to take into account local conditions and changing circumstances.

Further, the Court anticipated that the court of appeal in eachprovince will play a supervisory role with respect to such local adjustments.[33] [61] In Brampton, the guideline for a straightforward case like this one has been adjusted to between 8 and 9 months.[34] [62] Based on the analysis conducted above, the total delay of 22 ½ months in this case should be apportioned as follows: inherenttime requirements = 3 months; actions of the defence = 7 months; actions of the Crown = 2.5 months; and institutional delay = 10months. [63] In

summary, the total period of delay in this case that is attributable either to institutional delay or to the actions of the Crown is12 ½ months, exceeding the upper end of the guideline by some three and one-half months. 4. Prejudice to the Accused [64] The next factor to consider is whether the accused has suffered any prejudice. Here, the object is to measure any specificimpact on the particular claimant in relation to the various constitutional interests that

section 11(

b) aims to protect, i.e. the right toliberty, to right to security of the person and the right to a fair trial.[35] [65] In terms of prejudice to an accused person’s security interests, the Court in Morin quoted from Lamer J.’s judgment in Mills v.The Queen[36], which referenced: “the ongoing stress or damage to reputation as a result of overlong exposure to ‘the vexations andvicissitudes of a pending criminal accusation’”.[37] In other words, “the sense of being free from the stress and cloud of suspicion thataccompanies a criminal charge”.[38] [66] The Supreme Court has instructed that, “[t]he question of prejudice cannot be considered separately from the length of thedelay.

As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, ‘prejudice may be inferred from thelength of the delay. The longer the delay the more likely that such an inference will be drawn.’” [67] In this case, Mr. Lalani claims actual prejudice. In support he filed an affidavit and testified on the hearing of the application. [68] Mr. Lalani has experienced a fair amount of stress as a result of the charge that he is facing.

The prospect of losing his licensehas loomed large throughout this process and occasioned a fair amount of anxiety for him, given that his ability to drive is essential toearning his livelihood in sales. These feelings have interfered with Mr. Lalani’s sleep and his concentration, which has impacted on his

ability to perform his job as a salesperson effectively. Of course, these affects are far from surprising. They are common for many accused persons who are facing a criminal accusation for the first time. [ 69 ] When it comes to assessing prejudice for the purposes of

section 11(

b) of the Charter , there is a difference between prejudice arising from merely being charged with a criminal offence and prejudice occasioned by delay. [39] The former cannot factor into the

section 11(

b) calculus, while the latter must. The difference has been explained by the Court of Appeal in this way: The focus of prejudice under s. 11(

b) is the prejudice flowing from a situation "prolonged" by delay rather than the mere fact of being charged with a criminal offence: Bennett , supra, at p. 222 O.R., p. 478 C.C.C. In R. v. Silveira , [1998] O.J. No. 1622 , 35 M.V.R. (3d) 30 (Gen. Div.) , Hill J. clarified at para. 53, that "[t]he shame of disclosure to family, the expense of defending criminal charges, and the like, arise from the laying of the criminal charge itself and not from delay to trial". He accepted, however, that the delay to trial beyond the guidelines prolongs an accused's shame and increases his or her anxiety.

Thus, what was initially prejudice from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines. [40] [ 70 ] I accept that Mr. Lalani’s anxiety and stress has worsened because of the delay in bringing his case to trial. These feelings have become much more pronounced since September 13, 2013 when his case was not dealt with on the first scheduled trial date. This is the result of the added expense of paying defence counsel a second time. Mr. Lalani and his wife earn a gross income of approximately $75,000 per year.

Given their living expenses and mortgage, they struggle to make ends meet. As a result of Mr. Lalani’s case not being reached on the first scheduled trial date, the cost of defending against the charge he is facing has nearly doubled. This has had a significant impact on Mr. Lalani and his family. He gave very emotional testimony regarding the consequences occasioned by the added financial strain, which has left the family unable to fund two important overnight school trips for their son this academic year. [ 71 ] On behalf of the Crown, Ms.

Stackhouse argues that the added legal costs occasioned by the delay in bringing Mr. Lalani’s case to trial should not form a part of the prejudice assessment under

section 11(

b) of the Charter . No case law was provided in support of this submission. In my experience, courts routinely consider added legal fees in assessing claims of actual prejudice under

section 11(

b) of the Charter . I note that the Court of Appeal has referenced legal fees in this context without reservation or critical commentary, [41] as has the Superior Court in this Region. [42] IV. Conclusion [ 72 ] This case is close to the line. Combined, the institutional delay and delay occasioned by the actions of the Crown totals 12 ½ months. This exceeds the upper end of the guideline in Brampton by three and one-half months. I note that in Morin 12 months of institutional delay did not result in a

section 11(

b) violation. Of course, there was no prejudice in Morin and there is real prejudice in this case. [ 73 ] After balancing the individual and societal interests that are implicated by

section 11(

b) of the Charter , considering each of the relevant factors identified by the Supreme Court of Canada in Morin , including the actual prejudice that has been occasioned by the delay in this case, I am satisfied that the defendant’s

section 11(

b) Charter right to be tried within a reasonable time has been violated. Accordingly, I am granting his application and ordering a stay of the proceedings. Stribopoulos J.