R. v. Chamassian, 2013 ONCJ 800

Citation: R. v. Chamassian , 2013 ONCJ 800 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Avedis CHAMASSIAN Crown – Mr. Vandenende Defence – Mr. Barrs RULING KENKEL, J.F. (Orally): 1. Mr. Chamassian applies for a stay of proceedings as a remedy for an alleged breach of his

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b) right to trial within a reasonable time. 2. This is Mr. Chamassian’s third trial date. This matter was before the court on two prior occasions and he was ready for trial, but the matter was not reached. It’s been over twelve months since the date of arrest and I find that the time to date is sufficient to warrant an increase to the causes of delay. 3. The transcripts show that the period from the date of arrest to November 13 th is properly characterized an intake period. On November 13 th a trial date was set for February 4 th , 2013.

The transcript and the “green sheet” prepared that day by the Trial Co- ordinator’s office indicate that the court had earlier available dates in December and January, but the matter was set for trial February 4 th to accommodate Mr. Barrs’ schedule. 4. The matter was not reached February 4 th and a new trial date was set for May 9 th . The green sheet indicates in the comments

section that the court had earlier availability in March and April, but March 12th is the only date set out as offered by the court and that one day was not available to defence. 5. On May 9 th , the matter was not given priority despite being a second trial date. Again, it was not reached and a new trial date was set for October 31 st . Although the green sheet states “August dates available” there’s only one listed and it wasn’t available to the Crown or defence.

6. The court record shows that the specific dates listed were the only ones offered which contradicts the statement in the commentsection of the green sheet that suggests other August dates were offered. From May to the end of October, only one available day wasdeclined by the defence. 7. I agree with the Crown that as counsel was unavailable until the first trial date, that time is not attributable to institutional delays. See:R.v. Tran 2012 ONCA 18 , [2012], OJ No. 83 (CA). 8. The court failed to give this matter priority on the second trial date and a third was required.

The fact that the defence was notavailable on one date within both those multi-month periods does not necessarily mean that the delay past those points can be fairlyattributed to the defence. See: The Queen v. Godin 2009 SCC 26 , [2009], SCJ No. 26 p.23. I find that applies in this case, particularly where the central cause of the delay past May 9th was the failure of this court to give this matter priority. 9. I attribute the whole of the eight months and twenty-eight days from the first trial date to the time of Application to institutional delay. 10.

This matter was scheduled for one day and given the circumstances that reasonably gave rise to this Application, it’s plain that the matter would not finish today. Counsel have obtained a fourth trial date of April 7th, 2014 for completion of the matter. 11. Allowing for the expanded nature of the trial, now given this Application, noting it was caused by the court’s failure as earlierdescribed and setting aside the two fast dates in November where the defence was reasonably unavailable, I find that the two months and twenty-four days from today to January 23rd, is reasonably attributable to institutional delay.

I find the total institutional delay in thiscase to the end of trial is eleven months, twenty-two days. 12. I agree with the Crown that the defence witness who did not attend today is not “unavailable” in the legal sense and could becompelled to come to court. 13. I also agree that much of the personal stresses that the applicant described in his evidence relate to his lack of employment and otherissues that do not reasonably flow from the delays in this trial. 14. There is an aspect of prejudice in this case though that is more troublesome. Mr.

Chamassian has been unemployed throughout thisperiod and has sold his home and eventually exhausted his equity just to meet expenses, including the cost of three trial dates. While hewas able to retain a toxicologist and obtain a report, I accept his evidence he is unable now to afford to have this toxicologist attend andassist at trial. 15. While I agree with the Crown’s observation that toxicology evidence related to consumption plays a much reduced role in drinkingand driving cases since the 2008 amendments, it may be relevant in certain cases.

I’m also mindful that the new provisions place aburden on the defence to show error in the approved instrument or its operation and it is reasonable to infer that the evidence of thetoxicologist with expertise in that area might not just be helpful but essential in that context. I am concerned that Mr. Chamassian’s trialwould no longer be a fair one where over the period of delay he has lost the ability to pay for the expert he needs. 16. I take into account the public interest in the trial of these offences on their merits.

I should note that delay applications are rare atthis time in this jurisdiction as most matters that can be heard within a day are completed within a few months of the parties being readyfor trial. 17. Considering all of the circumstances including the public interest, the three trial dates with a certain fourth date, a total institutionaldelay of eleven months, twenty-two days and the prospect of an unfair trial, I find the defence has proved the

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b) breachalleged. 18. There will be a s.24(1)stay of proceedings.

MR. VANDENENDE: Thank you very much, Your Honour. ...COURT ADJOURNED Released: October 31, 2013