R. v. Ha, 2015 ONCJ 123

COURT FILE No.: DATE: 2015-February-04 Citation: R. v. Ha, 2015 ONCJ 123 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — WON SUK HA Before Justice Heather McArthur Reasons for Judgment released February 4, 2015 S. Cressman........................................................................................................ for the Crown A. Little........................................................................................................... for the applicant McArthur, J.: A. Introduction [1] On January 26, 2014, Mr. Won Suk Ha was charged with one count of driving over 80.

The information was sworn onJanuary 29. The intake stage of the case proceeded relatively quickly. Disclosure was provided at an early stage. The Crown pre-trial(CPT) and judicial pre-trial (JPT) proceeded expeditiously. [2] On April 2, following the JPT, Mr. Ha’s one and a half day trial was scheduled to start February 4, 2015. This was the earliestdate offered. Defence counsel advised that the defence was ready for trial and had available dates as early as the following day, withmany available dates after that. As proof of readiness, on April 3 defence counsel filed a detailed notice of application (NOA).

Thematter returned to court in July in an effort to find an earlier trial date. No such date was offered. [3] On December 4, 2014, Mr. Ha brought an application pursuant to ss.11(

b) and 24(1) of the Canadian Charter of Rights andFreedoms seeking a stay of proceedings on the basis that his right to be tried within a reasonable time has been infringed. On December19, 2014 I advised counsel that I was dismissing the application, with reasons to follow. These are my reasons. B. The Analytical Framework [4] The primary purpose of s.11(

b) of the Charter is to protect the defendant’s rights, including the right to liberty, the right tosecurity of the person and the right to a fair trial. In addition, the

section aims to protect the collective rights of society to have criminalcharges dealt with on the merits. (R. v. Morin, (SCC), [1992] 1 S.C.R. 771 at paras. 26-30; R. v. Khan, 2011 ONCA 173at para. 19) [5] The analytical framework for a s.11(

b) application was set out by the Supreme Court 20 years ago in R. v. Morin, supra, andre-affirmed in R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26. Whether delay has been unreasonable is assessed by lookingat the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for thedelay, the prejudice to the accused, and the interests that s.11(

b) seeks to protect. [6] When assessing the reasons for the delay, the court must consider five factors: 1) the inherent time requirements of the case; 2)actions of the defendant; 3) actions of the Crown; 4) limits on institutional resources; and 5) other reasons for the delay. (See also R. v.Tran 2012 ONCA 18 at paras. 20-24) [7] The final stage of the analysis requires a balancing of both the individual and state interests involved.

Before charges arestayed, the court must be satisfied on a balance of probabilities that the interests of the defendant and society in a prompt trial outweighthe interests of society in bringing the defendant to trial. (R. v. Morin, supra, at para. 87) C. Analysis

[ 8 ] In this case, there is significant common ground between the parties. In light of that, there are only three areas of dispute. [ 9 ] First, the parties diverge on how to characterize the time between April 2, 2014 and February 4, 2015. The defence argues that the entire 10 months and three days should be viewed as institutional delay. The Crown counters that at least one month should be characterized as part of the inherent time requirements of the case. [ 10 ] Second, the parties differ on how to assess prejudice. The defence argues that Mr.

Ha has suffered real, specific prejudice because of delay in this case. The Crown disagrees, arguing that any prejudice suffered relates to the charges themselves, as opposed to any delay. [ 11 ] Finally, both sides part ways over whether a proper balancing of the various factors warrants a finding that Mr. Ha’s s.11 (

b) rights were breached. [ 12 ] I propose to begin my analysis by setting out the common ground between the parties before turning to the areas of dispute. The Common Ground [ 13 ] The information was sworn on January 29, 2014. The anticipated trial date is February 4, 2015. As a result, the delay being assessed here is approximately 12 months and six days. Both sides submit that this is sufficient to warrant an examination of the reasons for the delay. [ 14 ] In addition, the parties agree that at no point did Mr. Ha waive his rights pursuant to s.11 (b). Indeed, it is clear that from the outset Mr.

Ha asserted his right to have a trial within a reasonable time. Counsel also agree that no actions by either the Crown or defence delayed the proceedings. [ 15 ] Finally, both sides take the position that the time frame between January 29 and April 2 should be viewed as neutral intake period. I agree. Time was required for disclosure to be vetted, copied and provided. The defence required time to review the disclosure and to have a CPT. A JPT had to be conducted and formed part of the inherent time requirements of the case. (See R . v. Nguyen , 2013 ONCA 169 at para. 54 ; R . v. Tran , supra at para. 34 , R . v.

Lahiry , 2011 ONSC 6780 , at para.116) [ 16 ] I will now turn to the areas of dispute. Should the time frame from April 2, 2014 to February 4, 2015 be characterized as inherent or institutional? [ 17 ] Institutional delay begins to run only when the parties are ready to proceed but the court is unable to accommodate them. In general, it is rare that counsel will be ready and available for trial when setting the date. (See R . v.

Tran , supra , at para. 33 ) That said, there may be situations where it is clear that counsel was, in fact, ready to proceed at the point in time in which the date was being set. [ 18 ] In the present case, defence counsel advised the court that his firm had available dates to conduct the trial starting April 3. On April 3, defence counsel filed a detailed NOA that set out the factual and legal basis for the anticipated motion. A review of the NOA makes it clear that defence counsel had carefully reviewed the disclosure, and had an in-depth understanding of the proposed evidence and the relevant legal issues.

The legal issues were not particularly complex and defence counsel was extremely experienced in this area. Based on all of this, Crown counsel concedes that in the unique circumstances of this case, counsel has established that the defence was ready for trial as of April 3. In light of the evidence before me, I agree with this concession. [ 19 ] Crown counsel argues, however, that institutional delay does not begin to run until both the Crown and defence are ready for trial. Here, the Crown required time to review the NOA and prepare a response. In addition, the Crown required time to subpoena witnesses.

The Crown submits that approximately one month is a reasonable time frame to complete these tasks and that this time should be viewed as neutral. Defence counsel counters that the cases refer only to defence counsel readiness, and once it is established that defence counsel is ready, the institutional delay clock begins to run. Thus, he argues that the entire time frame should be viewed as institutional. [ 20 ] I agree with the Crown, however, that the time that the prosecution reasonably requires to be ready for trial should be characterized as part of the inherent time requirements of the case.

Although the cases relied upon by the defence referred to defence counsel readiness, that is a function of the legal issues that presented in those particular cases; the cases do not discuss Crown readiness, because that was not the issue. It is, however, an issue that arises in the present case. I find that it is appropriate and fair that the Crown be given reasonable time to prepare materials and to notify witnesses to attend. (See R . v. Ignagni 2013 ONSC 5050 at para. 62 ) [ 21 ] That said, I do not agree with the Crown that the prosecution required a month to get ready for trial.

The issues were not particularly complex. In my view, 15 days would be sufficient time to allow for preparation of the response. I also find that 15 days would be enough time to subpoena witnesses for the trial. This time frame would give ample time for the prosecution to be ready to conduct the trial. Thus, I find that the institutional delay began to run as of April 18. [ 22 ] As a result, the total institutional delay in this matter amounts to approximately nine and a half months. This is within the Morin guideline for delay in the Ontario Court of Justice of eight to ten months.

The guideline, however, is not a limitation period. Deviations of several months in either direction can be justified by the presence or absence of prejudice. (See R . v. Morin , supra , at para. 76 ; R . v. Tran , supra , at para. 63 ) I now turn to an assessment of the prejudice in this case. Prejudice [ 23 ] The defence argues that prejudice to Mr. Ha can be inferred in this case. He further asserts that he has established specific prejudice. The Crown counters that prejudice cannot be inferred in this case, since the delays involved are within the Morin guidelines.

The Crown also submits that much of the specific prejudice alleged arises from the charges themselves, as opposed to delay.

[24] Dealing first with inferred prejudice. Where the delay is within the Morin guidelines, as in the present case, the inferredprejudice is minimal to non-existent. (See R. v. Lahiry, supra, at para.8, 17 and 26; R. v. Emanuel, 2012 ONSC 1132, at para. 27-28.) [25] Turning next to specific prejudice. The defence does not suggest any prejudice to Mr. Ha’s liberty but argues that delay hascaused prejudice to both his fair trial interest and his security of the person interest. In terms of his right to a fair trial, Mr.

Ha expressedconcern that his memory was fading and that by the time of his trial he may have forgotten important details. He also said, however,that as of the date of his affidavit (October 29), he had a “distinct recollection of most of the events of the day”. The affidavit was swornjust over three months before the scheduled trial date. If Mr. Ha had a distinct memory at that time, in my view an additional threemonths will not lead to any prejudicial memory loss. [26] In terms of Mr.

Ha’s security of the person interest, the defence points to his evidence that the ongoing uncertainty over his jobhas led to stress, depression and sleeplessness. Mr. Ha has seen his doctor a number of times over these issues and has been prescribedsleeping pills and medication for indigestion, despite his aversion to taking medications. He was referred to a psychotherapist, whom hesaw on July 23 and September 2. A careful review of his affidavit and testimony before me, however, leads me to the conclusion thatmuch of the prejudice being claimed relates to being charged, rather than delay. (See R. v.

Kovacs-Tatar, (ON CA),[2004] O.J. No. 4756 at para. 33) [27] Mr. Ha requires his license for employment. He is worried that he may lose his job if he is convicted. While I accept that hehas suffered increased stress as time passes, it seems that Mr. Ha’s concern regarding his employment is the primary reason for hisanxiety. I also note that as of December 5, the day Mr. Ha testified before me, he had not met with the psychotherapist for three monthsand had no immediate plans to return. If Mr.

Ha was suffering significant stress related to delay, one would have expected that he wouldhave continued to see the psychotherapist to assist with these issues. Thus, based on the evidence, while I am prepared to find someprejudice to Mr. Ha’s security of the person interest, I find that any such prejudice is minimal. [28] Defence counsel also argued that Mr. Ha suffered prejudice because he was offered a better job in August, but had to turn itdown. According to Mr.

Ha, he did not seriously consider the new job, which would require more driving that his current position,because of the uncertainty over whether he would lose his licence. He said if his trial had been earlier, such as in September or October,he might have asked his potential new employer to hold off, but did not think he could ask them to wait for his answer until February.

He also could not tell the potential employer why he wanted to wait before accepting the job, because he did not want to disclose hiscriminal charges and risk damaging his personal reputation. [29] In my view, however, while it is unfortunate that Mr. Ha missed out on this employment opportunity, it is a function of thecharge as opposed to the delay. Mr. Ha received the job offer only four months after the trial date was set. His affidavit suggests thathe while he might have asked the potential employer to wait until October, he would not consider asking him to wait any longer thanthat.

By October, however, the relevant delay at issue was about six months, two months less than the bottom end of the acceptablerange for institutional delay. The reality is, the job offer came at a time when Mr. Ha was unable to accept the offer because of hisworries that if he was convicted he would lose that job. Again, given that the offer was made in August his decision to decline the offerwas related to the charge itself and not because of undue delay in the proceedings. [30] Finally, the defence argues that Mr. Ha has suffered prejudice, since he had to pay for the costs of his s.11(

b) motion. In myview, however, while some legal costs may be relevant in a s.11(

b) assessment, any cost associated with the s.11(

b) motion itself mustbe viewed as a neutral factor in the analysis. I say this for the following reason. If, apart from the cost of the motion, a proper analysisof the various factors does not lead to a finding of unreasonable delay, the addition of the cost of the delay motion cannot serve to tip thebalance the other way. Were that the case, it would mean that where delay would otherwise be deemed reasonable, the simple act ofarguing that it is unreasonable would lead to the very unreasonableness being asserted. To so find would truly turn s.11(

b) into a swordrather than a shield. Balancing the Interests [31] Drinking and driving is a very serious offence. As noted by Code J. in R. v. Lahiry, supra, at para. 89: … it has been authoritatively stated that “[drinking and driving] has a far greater impact on Canadian society than any other crime”, andthat it is “clearly the crime which causes the most significant social loss to the country”, and that “every drinking driver is a potentialkiller”. See R. v. Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193 at para.16 (S.C.C.); R. v. McVeigh (1985), (ON CA), 22 C.C.C. (3d) 145 at 150 (Ont.C.A.); R. v.

Biancofiore (1997), (ON CA), 119 C.C.C. (3d) 344 atparas.19-23 (Ont.C.A.). Given these pronouncements, balancing the societal interest in a trial on the merits is particularly important indrinking and driving cases. [32] Moreover, the allegations in the present case fall at the more serious end of the spectrum. This is a relevant consideration whenbalancing the societal interest in a trial on the merits. (R. v. Emanuel, supra, at para.4) It is alleged that Mr.

Ha was driving southboundon Yonge Street when he crossed over the centre dividing line on the roadway and collided with a car that was traveling northbound. Itis further alleged that Mr. Ha had blood alcohol concentration readings of 171 and 169 milligrams of alcohol in 100 millilitres of blood,more than double the legal limit.

In light of the seriousness of the matter there is a strong public interest in a trial on the merits. [33] Thus, considering the length of the delay in this case which amounts to about nine and a half months, the lack of any explicit orimplicit waivers, the reasons for the delay, the prejudice suffered by Mr. Ha and balancing that against the societal interest in a trial onthe merits, I find that the length of the delay, while not ideal, is not unreasonable. D. Conclusion [34] Mr. Ha has failed to establish that his rights pursuant to s.11(

b) of the Charter have been violated. The application is dismissed.

Date: February 4, 2015 ________________________________ Signed: “Justice Heather McArthur”