R. v. Mohabir, 2014 ONCJ 310

COURT FILE NO. 12-7209 DATE: 2014-06-23 Citation: R. v. Mohabir , 2014 ONCJ 310 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - JAKE MOHABIR Before Justice James Stribopoulos at Brampton

Section 11(

b) Charter application heard on May 28, 2014, reasons released on June 23, 2014. J. Thompson…………..…………………………… … for the Crown. B. Starkman.…...…………………………….…….. for the Accused. I. Introduction [ 1 ] The defendant, Jake Mohabir, is charged with two offences; operating a motor vehicle while his ability to do so was impaired by alcohol and while his blood alcohol level exceeded the legal limit, contrary, respectively, to sections 253(1) (

a) and 253(1)(

b) of the Criminal Code . [ 2 ] On the evening of June 5, 2012 Mr. Mohabir was involved in a motor vehicle accident. He was arrested following a brief investigation at the scene of the accident. The charges against him were formally laid shortly thereafter. His trial eventually commenced before me on January 13, 2014, and continued on April 16, 2014. [ 3 ] At the end of the second day of trial, Mr. Starkman requested an adjournment in order to prepare and file an application for an order staying the proceedings based on the alleged violation of Mr. Mohabir’s right to be tried within a reasonable time, which is guaranteed by

section 11(

b) of the Charter . That application was argued on May 28, 2014. My decision with respect to that application was reserved until today’s date; these are my reasons on that application. [ 4 ] This is a relatively routine drinking and driving case, complicated slightly by the fact that it involved a motor vehicle accident. Despite this, slightly more than two years have elapsed since the charges were laid and the trial is still not completed (although it does seem to be just on the cusp of finishing).

This is a long enough period to raise an issue as to its reasonableness and warrants closer examination as to the reasons for the delay. [1] II. Chronology of the Case [ 5 ] On the evening of June 5, 2012, Mr. Mohabir was involved in a car accident at an intersection in the City of Mississauga. Following a brief investigation at the scene of the accident, Mr. Mohabir was arrested for impaired driving. A breath demand followed. The breath test results led to his arrest for driving with a blood alcohol level in excess of the legal limit.

The information charging him was formally sworn a week later, on June 12, 2012. [ 6 ] On June 15, 2012 Mr. Mohabir made his first court appearance in answer to the charges. Disclosure was provided and the case was adjourned for three weeks in order to allow the defence and the Crown to have pre-trial discussions. [2] [ 7 ] On July 6, 2012, Mr. Starkman’s articling student appeared and filed a designation. The student requested a two-week adjournment, in order to permit counsel to obtain instructions from Mr. Mohabir.

The Crown indicated that it was estimating that one- day of court time would be required if the case were set down for trial. Given the defence request and the time estimate mentioned by the Crown, it would seem that by this point the lawyers had already had initial pre-trial discussions. [ 8 ] The next appearance was on July 20, 2012. The transcript from that date is unavailable, although it would appear, based on the

transcript from the next appearance, that the matter was adjourned for two more weeks at the request of the defence. [3] [ 9 ] On August 3, 2012 Mr. Starkman’s articling student appeared on behalf of Mr. Mohabir. The defence requested that a judicial pre-trial be scheduled.

The Crown questioned the need for one, given that the matter was only estimated to require a day for trial. (In this jurisdiction, a judicial pre-trial is only necessary where a matter is anticipated to require more than a day for trial.) The parties were available on the date offered by the court, September 18, 2012, and the matter was adjourned to that date. [ 10 ] On September 18, 2012 counsel appeared before Justice Currie for the purposes of a judicial pre-trial. From the comments that were made on the record that day, the matter appeared to be heading towards resolution.

At the request of the defence, the case was adjourned for three more weeks for that purpose. [ 11 ] On October 10, 2012 the case was back before Justice Currie. At that time, Mr. Starkman’s associate advised that Mr. Mohabir wanted to proceed to trial. Unfortunately, Justice Currie was in a courtroom where there was no provincial Crown, only a federal prosecutor.

The case was put over for two-days, so that a provincial Crown could be present in order for a trial date to be scheduled. [ 12 ] On October 12, 2012 the case was adjourned for another week, again at the request of the defence. [4] [ 13 ] On October 19, 2012 Mr. Starkman’s student attended on behalf of Mr. Mohabir in order to set a trial date. The first date offered by the court was May 30, 2013. Although available to the defence, it was not available to the Crown. The next date offered that was available to both sides was May 31, 2013. The case was adjourned to that day for trial. At the time, Mr.

Starkman had a number of earlier dates available for trial, beginning in December of 2012. [ 14 ] On April 16, 2013, defence counsel served and filed a notice of application alleging police violated Mr. Mohabir’s

section 7, 8, 9 and 10(

b) Charter rights during the course of their investigation. The central thrust of the Charter application was that Mr. Mohabir’s statements to the investigating police officer at the scene of the accident were compelled because of

section 199 of the Highway Traffic Act [5] . It was alleged that these statutorily compelled statements are what furnished the officer with his grounds to arrest Mr. Mohabir and to also demand breath samples from him. Consequently, in terms of a remedy, the defence sought the exclusion of the results of the breath testing and, in the alternative, an order precluding the Crown from relying on the presumption of identity contained in section 258(1) (

d) of the Criminal Code . [6] [ 15 ] On May 8, 2013 the defence brought an application to adjourn the trial date scheduled for May 31, 2013. The defence agreed to waive any delay between the scheduled trial date and the new trial date. In light of that concession, the Crown did not oppose the application. The trial was therefore adjourned to September 12, 2013. [ 16 ] On August 27, 2013 the Crown served and filed its response to Mr. Mohabir’s Charter application. The Crown’s position was that, even without Mr.

Mohabir’s utterances at the scene of the accident, the arresting police officer had the required reasonable grounds to believe that he was the driver of one of the vehicles involved in the accident and that he had been operating his vehicle while impaired. In other words, it was the position of the Crown that the investigative steps taken by police that ultimately led to the production of the incriminating breath samples did not depend on statutorily compelled statements for their justification. Hence, there was no Charter breach involved in the acquisition of the evidence implicating Mr.

Mohabir. [ 17 ] On September 12, 2013 Mr. Mohabir’s case was initially on the docket in a courtroom designated a To Be Assigned or “TBA” court for that day. In Brampton, matters set for trial that are expected to last a day or less are routinely placed in the TBA court. The use of TBA courts is part of the trial scheduling system in the Ontario Court of Justice here in Brampton. On the scheduled trial date, some cases on the TBA docket will remain in that courtroom and be dealt with in due course.

Many others, however, will be traversed into other courtrooms as the cases originally on the docket in those courtrooms either collapse or resolve. This system is meant to achieve efficiency, by reducing the risk of courtrooms sitting empty when cases scheduled for trial do not proceed. The goal is to ensure that limited judicial resources are utilized to their maximum capacity. [7] [ 18 ] Eventually Mr. Mohabir’s case was traversed to another courtroom before a visiting judge who sits in Brampton only infrequently. Ms.

Thompson, who was the Crown that day, advised that one of the Crown’s witnesses (the qualified breath technician) had called that morning and was unable to attend because of a family emergency. As a result, Ms. Thompson explained that even if the case commenced she would need to seek an adjournment so that the qualified breath technician could testify. The judge noted that he would be back in Brampton the very next day, as well on one further date in late September and three dates in early October.

Unfortunately, the only date offered that worked for defence counsel was the very next day, but the police witnesses were unavailable. Given the judge’s limited availability, it was decided that the matter should be returned to the TBA court in order to proceed before a different judge in another courtroom. Unfortunately, by that point in the day, there was no Crown available to take carriage of the prosecution in another courtroom. Hence, it was decided that the case would need to be adjourned. For the record, Mr. Starkman made clear that he had been ready to proceed and noted that Mr.

Mohabir was anxious to have his case dealt with. [ 19 ] In terms of a new trial date, the first date offered by the court was September 24, 2013. Unfortunately, neither the Crown nor the defence were available on that date. The next date offered by the court that was available to both sides was January 13, 2014. [ 20 ] On January 13, 2014 Mr. Mohabir’s case was initially in a TBA court.

His case came before me just shortly after 10:00 a.m., when another trial matter that I was scheduled to hear that morning was unexpectedly adjourned. [ 21 ] At the commencement of the trial, the parties agreed that the Charter application and the trial proper should proceed simultaneously and in a blended fashion, with the court sorting out issues of admissibility in the result. [ 22 ] The Crown began its case by calling Mr. Mercieca. He testified that on the night in question he was driving through an intersection on a green light when Mr.

Mohabir made a left turn in front of him causing their two vehicles to collide. It would appear that the Crown called Mr. Mercieca in order to establish that the defendant was driving a motor vehicle and that he had caused the accident by making an unsafe left turn. The Crown did not ask any questions of Mr. Merceica regarding his involvement with the investigating police officers at the scene of the accident. During very brief cross-examination Mr. Starkman also steered clear of this

topic. [ 23 ] The Crown’s next witness was Constable Mulick. He was the first police officer at the scene of the accident. He was in the vicinity and simply came across the accident within a minute or two of the collision. [ 24 ] In examination-in-chief, Constable Mulick testified that after asking everyone if they were okay, shortly after he arrived at the scene of the accident, Mr. Mohabir approached him and repeatedly volunteered, “this accident’s my fault”. As he did so, the officer testified that he could smell the odour of alcohol emanating from Mr. Mohabir’s breath.

At that point, the officer testified that he asked Mr. Mohabir for his driver’s license, vehicle registration and proof of insurance. [ 25 ] While Mr. Mohabir went back to his car to retrieve the requested documents, Constable Mulick testified that he approached Mr. Mercieca and quickly asked him what happened. According to Constable Mulick, during this brief conversation, Mr. Mercieca told him, while gesturing over at Mr. Mohabir, that “he” made a left turn in front of him. If accepted, this evidence would establish that Constable Mulick had received information identifying Mr.

Mohabir as the driver independent of any statutorily compelled statements. [ 26 ] Constable Mulick testified that he then returned to Mr. Mohabir and asked him for his explanation of what had happened. During this exchange, Constable Mulick testified that he continued to smell the odour of alcohol emanating from Mr. Mohabir’s breath as he spoke, that he also noted that his eyes were bloodshot, his speech was slurred and he appeared to be unsteady on his feet. Given all of this, Constable Mulick testified that he formed the opinion that Mr.

Mohabir was operating a motor vehicle while impaired and therefore placed him under arrest for that offence. The officer immediately read Mr. Mohabir his rights to counsel, cautioned him and proceeded to make a formal breath demand before transporting him back to the police division. [ 27 ] Mr. Mercieca ultimately gave a more formal statement to Constable Navarro, who was the second police officer who attended the scene of the accident. Constable Navarro was also the officer who completed the accident report. He did so based on information supplied by Mr.

Mercieca. [ 28 ] Unfortunately, Constable Mulick’s notes, which detailed his involvement in this investigation and formed a part of the disclosure provided to the defence, did not detail what Mr. Mercieca told him about Mr. Mohabir being the driver of the other vehicle. The relevant entry in Constable Mulick’s notes read as follows: Accused approaches me, states, ‘it’s my fault, officer’. Says this several times. States, ‘I caused this accident’. Ask accused if he is okay. While he is making statements can smell strong odour of alcoholic beverage from his breath.

Accused is one foot to one and a half feet away from me. Observed accused eyes to be blood shot and slow eyed movement while he is looking around. Leave accused for a moment to deal with other parties and traffic. Return to accused. [underlining added] [ 29 ] The underlined portion of the excerpt was the extent to which Constable Mulick’s notes referenced his interaction with Mr. Mercieca at the scene of the accident. Importantly, the notes did not serve to disclose that Mr. Mercieca had identified Mr.

Mohabir as the driver of the other vehicle involved in the collision when speaking with Constable Mulick. [ 30 ] Just prior to the lunch break, after Constable Mulick had finished testifying, Mr. Starkman raised the apparent deficiency in the disclosure provided by the Crown regarding the information received by Constable Mulick from Mr. Mercieca at the scene of the accident. In terms of a remedy, Mr. Starkman requested that Mr. Mercieca re-attend so that he could be cross-examined on what, if anything, he had said to Constable Mulick before Mr.

Mohabir was arrested. [ 31 ] After briefly hearing from counsel regarding this issue, I ruled that, once the defence had filed its Charter application; the Crown would have been under a positive duty to disclose any information relevant to that application. [8] This would include information about what Mr. Mercieca had reportedly said to Constable Mulick about Mr. Mohabir being the driver of the other car involved in the collision. I was of the view that the entry in Constable Mulick’s notes was inadequate in that respect. [9] As a result, by way of remedy, I directed that the Crown arrange to have Mr.

Mercieca return to court for further cross-examination. [ 32 ] After the lunch break, Ms. Thompson advised that Mr. Mercieca was unavailable that afternoon. The Crown proceeded to call its remaining witnesses, including Constable Navarro and Constable Rawlinson (the qualified breath technician). By the end of the day Constable Rawlinson had only completed his evidence-in-chief. As a result, a further adjournment was necessary, both to allow for the completion of Constable Rawlinson’s testimony and to allow for Mr.

Mercieca to re-attend for further cross-examination. [ 33 ] In terms of a continuation date, the court offered counsel four dates in January, three dates in February, a date in March, and a date in April, the only date that was available to both was April 16, 2014. The matter was adjourned to that date for the continuation of the trial. Before adjourning for the day, Mr. Starkman indicated that it was possible he would be bringing a

section 11(

b) Charter application on the return date. [ 34 ] The trial continued before me on April 16, 2014. Mr. Mercieca returned to the witness stand and was briefly cross-examined by Mr. Starkman. During his evidence Mr. Mercieca confirmed that he spoke to the first officer who attended the scene (Constable Melick) and told him what had happened. He testified that he gave a more formal written statement a bit later to a different police officer. In addition, Mr. Starkman also very briefly cross-examined the qualified breath technician, Constable Rawlinson. The Crown then closed its case. [ 35 ] After a short recess, Mr.

Starkman abandoned the Charter application previously filed, acknowledging that its foundation had been eroded by the combined effect of the evidence of Constable Mulick and Mr. Mercieca. With that, Mr. Starkman requested an adjournment in order to prepare and file a

section 11(

b) application. By way of an explanation for failing to bring the application sooner, Mr. Starkman noted that he had taken steps to prepare the application, including ordering the transcripts from the various appearances, but had taken ill with pneumonia, which he cited as the reason why the application had not been served and filed in the interim since the last appearance. In light of this explanation, I granted the requested adjournment.

[ 36 ] The trial was therefore adjourned to May 28, 2014 for the purposes of hearing the

section 11(

b) Charter application, which was the first date offered by the court that was available to the parties. [ 37 ] On May 28, 2014 I heard argument on the

section 11(

b) Charter application. I reserved judgment on that application until today’s date, June 23, 2014. III. Law and Analysis [ 38 ]

Section 11(

b) of the Charter guarantees those charged with an offence, “the right to be tried within a reasonable time.” [ 39 ] In Morin , the Supreme Court of Canada’s seminal judgment interpreting

section 11( b ), the Court explained that the guarantee primarily aims to protect the individual, while acknowledging that it also serves societal interests. [10] [ 40 ] 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 still available and memories are fresh. [11] [ 41 ] According to the Supreme Court,

section 11(

b) serves societal interests because it vindicates our collective interest in ensuring that those accused of crime are treated fairly and humanely. Public confidence in the administration of justice is also served by holding trials promptly. At the same time, the Court acknowledged that in this context there is 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. [12] [ 42 ] In Morin the Supreme Court rejected 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.” [13] The Court identified the relevant factors to be considered in making this determination. Each of those factors will be considered below in light of the specific circumstances of this case. 1. Length of the Delay [ 43 ] In assessing the reasonableness of the delay for

section 11(

b) Charter purposes, the relevant period is from the date the charge was formally laid, that is when the information charging the offence was sworn, until the anticipated completion of the trial. [14] [ 44 ] The information charging Mr. Mohabir was sworn on June 12, 2012. Barring unforeseen circumstances, it seems likely that the trial of this matter will be completed today, June 23, 2014. As a result, the total delay in this case is just slightly more than two years. 2.

Waiver of Time Periods [ 45 ] In assessing this factor, the court must consider whether or not there has been any 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. [15] [ 46 ] The transcripts for most of the court appearances in this case have been filed on this application. To the extent that some of the transcripts are missing, the parties are essentially agreed on what transpired on those dates.

Reviewing the transcripts, it would appear that the only period of delay that was the subject of a waiver is from May 31, 2013 (the first scheduled trial date) until September 12, 2013 (the second scheduled trial date). It will be recalled that in applying to have the first scheduled trial date adjourned; the defence expressly waived any delay between these two dates. Accordingly, Mr. Mohabir expressly waived approximately 3½ months of the delay in this matter. [ 47 ] To be sure, there were also actions taken by the defence during the course of this case that led to some of the delay.

In that regard, some of these actions could probably be characterized as an implied waiver. However, given that the analytical framework supplied by Morin specifically contemplates separate consideration of the actions of the defence in attributing delay, those actions will be considered below rather than being treated as a form of implied waiver. 3. Reasons for the Delay [ 48 ] 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 defendant; (

c) actions of the Crown; (

d) limits on institutional resources, and (

e) any other reasons for the delay. [16] I will address each of these factors in turn. (

a) inherent time requirements [ 49 ] I will begin with the inherent time requirements of the case. Morin recognized that there are a number of variables that are an inevitable part of all litigation that are said to form a part of the inherent delay in a given case. [ 50 ] For example, the defendant must retain counsel, the Crown must provide disclosure, the lawyer hired must have an opportunity to review the disclosure, interview the person charged and any potential defence witnesses, conduct necessary legal research and participate in pre-trial discussions.

This collection of steps is ordinarily said to form a part of the intake period for the case. [17] [ 51 ] In addition, counsel will also ultimately require time to prepare for trial. Except for the lawyer who has just been called to the bar, few lawyers have a

schedule so barren of pre-existing commitments that they would be in a position to proceed to trial immediately

once the intake steps are completed. 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. [18] [ 52 ] In Morin the Supreme Court recognized that the length of time to be treated as part of the intake 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. [19] In Peel Region, two months has been described as the ordinary intake period for a routine drinking and driving case. [20] [ 53 ] As a result, the 2-month period from June 12, 2012, when the information was sworn, until August 12, 2012, will be treated as the intake period in this matter.

As a result, these 2-months will be considered part of the inherent time requirements in this case. [ 54 ] As noted, Morin recognized that counsel require time to clear their schedules so that they can be available for trial and they also require time to prepare for trial. This period is also to be treated as part of the inherent time requirements of the case. As a result, the Court of Appeal has observed that the parties should not automatically be deemed to be ready to conduct a trial as of the date the trial date is set.

Rather, the Court has instructed that, “[i]nstitutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them.” [21] [ 55 ] In this case, the trial date was set on October 19, 2012 for May 31, 2013. At the time, it was noted that Mr. Starkman had dates available for trial beginning in December, 2012.

Assuming for the sake of my analysis that this included dates in early December (this was not made clear on the record), this means that the 6-week period from October 19, 2012 until the first week of December, 2012 should also be treated as part of inherent delay in this case. [ 56 ] Finally, the case law also recognizes that delay resulting from the illness of a witness is ordinarily attributed to the inherent time requirements of the case.

This is because such unexpected and unavoidable developments are an inherent part of the litigation process. [22] In this case, the first scheduled trial date on September 12, 2013 had to be adjourned primarily [23] because a Crown witness was unexpectedly unavailable due to a family emergency. In my view, the situation of an unavailable witness who is ill is analogous to the situation of the witness who is unable to attend because of a family emergency.

In both circumstances, the reason for the witness’ absence is necessary, unavoidable and unpredictable; each is an infrequent but inevitable event within any human system. Accordingly, in my view, the 4-month delay between the first scheduled trial date and the next scheduled trial date on January 13, 2014 is also properly characterized as part of inherent delay in this case. [ 57 ] By way of

summary, the total period of inherent delay, inclusive of the intake period, the time necessary for defence counsel to make himself available for trial, and the delay occasioned by the family emergency experienced by a Crown witness, totals 7½ months. (

b) actions of the defendant [ 58 ] I am required to consider whether any actions by the defendant may have contributed to the delay. The object here is not to assign blame. Rather, this simply reflects the reality that in our adversarial system the way in which the defence is conducted may play a role in prolonging the proceedings.

A defendant is not expected to forego procedures and strategy in advancing a defence, but to the extent that such choices impact on how long it takes for a case to complete they are relevant in determining the reasonableness of the delay in bringing a case to conclusion. [24] [ 59 ] From reviewing the transcripts, it would appear that this matter was ready to be set down for trial by early August 2012. By then, disclosure had been provided, counsel was retained, pre-trial discussions between the parties had taken place and a one-day estimate for trial was settled upon.

In other words, the ordinary intake period of two months for routine alcohol related driving offences in Peel Region accurately tracked the early progress of this case. [ 60 ] The 9-week delay between August 12, 2012, the end of the intake period, and October 19, 2012, the date upon which the matter was finally scheduled for trial, resulted from a combination of two things. [ 61 ] Firstly, the defence requested a judicial pre-trial. It will be recalled that a judicial pre-trial was not required in this matter, given that the case was not estimated as requiring more than a single day for trial.

As a result, when the defence requested that a judicial pre- trial be scheduled the Crown understandably questioned the need for one in this case. [ 62 ] To be sure, where judicial pre-trials are required as a precondition for setting a trial date, as a way of ensuring the efficient management of court resources, reasonable delays that are occasioned in order to arrange for them are to be treated as part of the inherent time requirements of a case. [25] Beyond situations where they are mandatory, it also seems to me that where a case is of such a nature that judicial input would be useful, the scheduling of a judicial pre-trial should be encouraged and the resulting delay should therefore be characterized as inherent. [26] [ 63 ] In this case, it is not apparent to me why a judicial pre-trial was necessary.

This is not meant to be critical of defence counsel. No doubt, for reasons that are not apparent on the record, Mr. Starkman felt there would be a benefit in conducting a judicial pre-trial. Be that as it may, in terms of describing the reasons for the delay in this case I think it is necessary to attribute the approximately 5- weeks from August 12, 2012 (the end of the intake period) until September 18, 2012 (the date of the judicial pre-trial) to the defence.

To be clear, I do not think this attribution ultimately shifts the balance either way on this application, given that the inherent time requirements and the actions of the defence are essentially neutral considerations on a

section 11(

b) application. Nevertheless, it was the defence that requested a judicial pre-trial in circumstances where the need for one was not apparent. As a result, in my view, the resulting delay is fairly ascribed to Mr. Mohabir. [ 64 ] The next period of delay that results from the actions of the defence is the period between the judicial pre-trial on September 18, 2012 and the setting of the date on October 19, 2012. Again, the case was ready to be set for trial in early August. This further period of approximately 1-month of delay resulted directly from adjournment requests made by the defence.

[ 65 ] Finally, as noted above, the case was essentially at its completion on April 16, 2014. It was a defence request to adjourn the proceedings for the purposes of preparing, filing and arguing a

section 11(

b) application that has ultimately resulted in the delay from April 16, 2014 until today’s date, essentially 9-weeks of further defence initiated delay. [ 66 ] In

summary, then, when one combines the 9-weeks of delay between the completion of the intake period on August 12, 2012 and the setting of the trial date on October 19, 2012 and the 9-weeks of delay between the completion of the Crown’s case on April 16, 2014 and today date, June 23, 2014, the defence is responsible for 4½ months of the total delay in bringing this matter to completion. (

c) actions of the Crown [ 67 ] I turn next to consider the actions of the Crown. Like with the conduct of the defendant, 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] [ 68 ] As noted above, the deficiency in terms of the disclosure relating to the conversation that took place between Constable Mulick and Mr.

Mercieca at the scene of the accident was one of the reasons that necessitated the adjournment from January 13, 2014 until the continuation date on April 16, 2014. Although, as noted, the non-disclosure was entirely inadvertent, I think the resulting delay should fairly be attributed to the Crown. [ 69 ] That said, I must acknowledge that even without the complication created from the need to bring Mr. Mercieca back for further cross-examination, I am far from convinced that this case would necessarily have finished on January 13, 2014.

At the end of that day, Constable Rawlinson (the breath technician) had only just completed his evidence-in-chief. He still needed to be cross-examined. Time would also have been required for submissions on the Charter application. In other words, in retrospect, the one-day trial estimate seems to have been overly optimistic from the outset. [ 70 ] Nevertheless, I note that at the end of the day on January 13, 2014, when counsel were estimating how much more time would be needed to complete the case, they estimated a half-day.

No doubt, they did so in part because of the uncertainty created because of the need for Mr. Mercieca to return. Had the only outstanding evidence at the end of the day been Constable Rawlinson’s cross- examination, the estimate of how much time was still required to complete the case might have been much shorter and therefore led to a much earlier date. As a result, at this point, it is simply impossible tell how things might have played out differently had there not been the disclosure hiccup involving Mr.

Mercieca. [ 71 ] For these reasons, I think the resulting 3-month delay from January 13, 2014 until April 16, 2014 is fairly attributed to the Crown. (

d) limits on institutional resources [ 72 ] In Morin the Supreme Court identified 8 to 10 months of institutional delay in the provincial court as a guideline to assist trial judges in adjudicating

section 11(

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

Further, the Court anticipated that the court of appeal in each province would play a supervisory role with respect to such local adjustments. [29] [ 73 ] In Brampton, the guideline for a straightforward case like this one has been adjusted to between 8 and 9 months. [30] [ 74 ] Based on the analysis above, the total delay of justly slightly more than two years in this case should be apportioned as follows: waiver = 3½ months; inherent time requirements = 7½ months; actions of the defence = 4½ months; actions of the Crown = 3 months; and institutional delay = 6 months. [ 75 ] In

summary, the total period of delay in this case that is attributable either to institutional delay or to the actions of the Crown is just slightly more than 9 months. This delay is just beyond the upper end of the permissible range for a case like this one in Peel Region. 4. Prejudice to the defendant [ 76 ] The next factor to consider is whether the defendant has suffered any prejudice. The court is required to assess any specific impact on the particular claimant in relation to the various constitutional interests that

section 11(

b) aims to protect, i.e. the right to liberty, the right to security of the person and the right to a fair trial. [31] [ 77 ] In terms of prejudice to an accused person’s security interests, the Court in Morin quoted from Lamer J.’s dissenting judgment in Mills v. The Queen [32] , which referenced: “the ongoing stress or damage to reputation as a result of overlong exposure to ‘the vexations and vicissitudes of a pending criminal accusation’”. [33] In other words, “the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge”. [34]

[ 78 ] As the Supreme Court recently reminded in Godin : “[t]he question of prejudice cannot be considered separately from the length of the delay. … even in the absence of specific evidence of prejudice, ‘prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.’” [35] [ 79 ] 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. [36] The former cannot factor into the

section 11(

b) calculus, while the latter must. [37] [ 80 ] Mr. Mohabir claims that the delay in bringing his case to trial has prejudiced him. He submitted an affidavit in support of his application and was cross-examined on it. [ 81 ] Mr. Mohabir is 37 years of age, single and has no children. Although his principal residence is in Waterloo, he operates his own real estate investment business based in Orlando, Florida. Mr. Mohabir’s business consists of buying, fixing, and selling properties. In addition, he also buys and holds properties as investments. Apparently, Mr.

Mohabir splits his time between Ontario and Florida. [ 82 ] Mr. Mohabir maintains that the numerous trial appearances he has been required to make have proven rather inconvenient for him because his business is in Florida. Each appearance has necessitated return travel to Ontario, with resulting expense and disruption to his business. During cross-examination, however, Mr. Mohabir conceded that he has been able to

schedule his business commitments around his court attendances. In other words, although the numerous court appearances have undoubtedly been an inconvenience for him in conducting his work they have not had any significant impact on his ability to earn a livelihood. [ 83 ] After expenses and taxes, Mr. Mohabir has an annual net income of $20,000 per year. The additional unanticipated court attendances in his case have resulted in additional legal fees for him. He maintains that these further costs have been very difficult for him to manage. [ 84 ] The added legal fees that result when a case is delayed are undoubtedly a relevant consideration when assessing claims of actual prejudice under

section 11(

b) of the Charter . [38] Much will depend on the circumstances of the particular accused. For example, for a wealthy person additional legal expenses may be relatively inconsequential. However, for a person of ordinary or modest means, the added cost of paying one’s lawyer for further court appearances could require difficult choices as between other financial demands. As a result, for some, the resulting impact on their psychological integrity may be sufficiently serious and profound that it engages their security of the person and therefore counts as prejudice relevant on a

section 11(

b) Charter application. [39] [ 85 ] Although I accept that Mr. Mohabir incurred additional legal expenses because of the delays in his case, I believe the evidence fell short in terms of establishing actual prejudice. In that regard, I note that there was no specific evidence explaining in what ways the added legal fees impacted on other aspects of Mr. Mohabir’s life. Importantly, I note that I was not provided with any information regarding Mr. Mohabir’s net worth or assets. In that regard, all that I know is that Mr. Mohabir is in the business of buying, renovating and selling properties.

Additionally, there was evidence that he holds some properties as investments. Given all of this, I do not think it has been established that the added legal fees occasioned by the delays in this proceeding resulted in actual prejudice. [ 86 ] Mr. Mohabir also deposed and testified that the delays associated with the completion of his case have resulted in stress and anxiety. In particular, he notes that after he came to court on September 12, 2013 only to have his trial adjourned for an additional four months the resulting delay made him very distressed and anxious.

In addition, he indicates that he was devastated when he realized that his case would not be completed on January 13, 2014, as expected, and that a further adjournment until April 16, 2014 was necessary. Mr. Mohabir testified that his feelings of stress and anxiety have worsened with the delays in his case. [ 87 ] I have no doubt that Mr. Mohabir has experienced anxiety and stress due to having these charges outstanding against him. I also accept that these feelings have very likely worsened because of the delays in bringing his case to completion. IV.

Conclusion [ 88 ] In deciding this application, I am cognizant of Arbour J.A.’s reminder that when it comes to assessing a

section 11(

b) Charter application, it is important not to “lose sight of the importance of the total period of delay.” [40] During submissions, Mr. Starkman rightly emphasized this point. However, as Arbour J.A. noted, “ it is the reasonableness of the total period of time that has to be assessed, in the light of the reasons that explain its constituent parts.” [41] [ 89 ] It is indeed unfortunate that it has taken nearly two years for this case to be completed.

However, the analysis above makes plain that only slightly more than 9 months of that delay resulted from institutional or Crown delay, which is within the Morin guidelines and just slightly above the guidelines that have been established here in Peel Region for matters being tried in this court. [ 90 ] Although I accept that there has been some prejudice in this case, in the form of increased stress and anxiety for Mr. Mohabir because of the unexpected delays in completing this matter, I am disinclined to give this too much weight in my analysis.

In that regard, I think it noteworthy that the defence was responsible for a fair amount of the early delay in this case. [ 91 ] In

summary, 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 , I am not satisfied that the defendant’s

section 11(

b) Charter right to be tried within a reasonable time has been violated. [ 92 ] This application is therefore dismissed. Stribopoulos J.