R. v. MacPhee, 2010 ONCJ 328

Citation: R. v. MacPhee , 2010 ONCJ 328 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN against DANIEL MACPHEE ************* R U L I N G BEFORE THE HONOURABLE MR. JUSTICE K. BARNES AT TORONTO, ONTARIO, ON APRIL 29, 2010 ********** APPEARANCES : M. Wilson, Esq. Counsel for the Crown M. Montes, Esq. Counsel for the accused ********** ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Exam In- Cr- Re-

WITNESSES Chief Exam Exam ********** E X H I B I T S EXHIBIT NUMBER PUT IN ON PAGE ********** R U L I N G THE COURT: Mr. MacPhee is charged that on the 27 th day of August, 2008, he was operating his motor vehicle whilst his blood alcohol concentration exceeded the legal limit of 80 milligrams of alcohol in 100 milliliters of his blood. Now, the facts as summarized for me, are that on August 27, 2008, he was investigated by the police for speeding in the City of Toronto. That he was travelling at a speed of 82 kilometers per hour in a 60 kilometers per hour zone.

As a result of the police investigation, a breath demand was made. Intoxilyzer test results indicate that Mr. MacPhee's blood alcohol concentration at the time of

the operation of his motor vehicle was 120 milligrams of alcohol in 100 milliliters of his blood. That was the first reading. His second reading was 110 milligrams of alcohol in 100 milliliters of his blood. Mr. MacPhee submits that his right to be tried within a reasonable time, as enshrined in s.11(

b) of the Charter has been violated, and he seeks a judicial stay of proceedings as a remedy. THE LAW

Section 11(

b) seeks to protect the individual right to security of the person, the right to liberty, and the right to a fair trial. There is a secondary societal interest in ensuring the humane and fair treatment of accused, as well as a prompt conduct of criminal trials. ( Regina v. Morin , 71 C.C.C. (3d), paragraphs 27 and 28) The judicial guideline for institutional delay in the Ontario Court of Justice is 8 to 10 months of delay. (See Morin , paragraph 55).

The Court, in Morin , at paragraph 47 cautions as follows, and I quote, "It must not be forgotten the systemic or administrative guidelines must not be applied as a ceiling, threshold, or limitation period. The required balancing of the Askov factors must be undertaken in every case." Cromwell, J., in Godin , 2009 SCC 26 (CanLII) , [2009] S.C.J. 26, at paragraph 18 , summarizes the legal framework for s.11(

b) analysis as follows; "The legal framework for the appeal was set out by the Court in Morin at page 786 to 789. Whether delay has been unreasonable is assessed by looking at the length of delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice of the accused, and the interest s.11(

b) seeks to protect. This often invariably and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis." As Sopinka, J., noted at page 787, "The general approach is not by the application of an automatic or administrative formula, but rather by judicial determination balancing their interest which s.11(

b) is designed to protect against factors which either inevitably led to the delay, or are otherwise the course of delay." The length of delay encompasses the period of time from the date the Information was sworn to the date the trial is scheduled to be completed. ( Morin , paragraph 32). An assessment of the reasons for the delay requires an inquiry into these factors:

(1) The length of the delay.

(2) The waiver of time periods.

(3) The reasons for the delay, these include; (

a) Inherent time requirements of the case,

(

b) Actions of the accused, (

c) Actions of the Crown, (

d) Limits on institutional resources, (

e) Other reasons for the delay, and,

(4) Prejudice to the accused. ( Morin , at paragraph 31). THE HISTORY OF THE CASE The accused was arrested on August 27, 2008. The Information in this case was sworn on September 30 th , 2008. On October 2 nd , 2008, the first appearance in this case occurred. Disclosure was not available, and the matter was adjourned to October 15, 2008, at the request of the Crown. On October 15, 2008, the Crown advised the court that disclosure was available. The defence counsel requested an adjournment until October 17, 2008. On October 17, 2008, the disclosure was provided to the defence.

Defence was advised to book a Crown pre-trial, and the matter was adjourned to November 19, 2008, at the defence's request. November 19, 2008, on that date the defence informed the court that a Crown pre-trial had in fact been scheduled for November 28 th , 2008. The defence requested that the matter be adjourned to December 10 th , 2008. On December 10, 2008, the trial date of December 4, 2009 was set for this matter. On December 4, 2009, the defence sought an adjournment for the purpose of bringing an 11(

b) motion. That adjournment was granted, and the matter was adjourned to April 28 th , 2010. THE LENGTH OF THE DELAY The length of delay is calculated from the date the Information is sworn, and continues until the end of the trial. ( Morin, supra , at paragraph 14). In this case, this is from September 30, 2008 to April 28, 2010, a total of some 18 months and 28 days. This delay is inherently unreasonable, and warrants an inquiry into the reasons for the delay.

WAIVERS It is agreed that the applicant waived the period of delay from December 4 th , 2009 to the second trial date of April 28, 2010, a total of some 4 months and 15 days. The agreed statement of fact filed by both the Crown and the applicant reads follows; "December 4 th , 2009, an adjournment was sought for the purpose of bringing an 11(

b) application. No notice of a desire to seek an 11(

b) application was ever provided prior to December 4, 2009. Counsel for the applicant did not express a desire to proceed with the trial,

and have the 11(

b) application heard at a later date." REASONS FOR THE DELAY Dealing first with the inherent time requirements of the case; the inherent time requirements of the case refer to all those activities required to prepare for trial, and conduct a trial once it begins. These activities include the retention of counsel, bail hearings, disclosure, et cetera. This period is viewed as neutral. ( Morin, supra , at paragraph 42). The parties were ready to set a date for trial on December 10 th , 2008.

For reasons that I will articulate below, I find that the delay that occurred between October 2 nd , 2008 to October 15 th , 2008, which is a total of 13 days, is attributed to the Crown. The delay that occurred between November 19 th , 2008 to December 10 th , 2008, some 21 days, is attributed to the defence for failure to conduct a Crown pre-trial.

Therefore, the inherent time requirements of this case falls within the period of September 30 th , 2008 to October 2 nd , 2008, October 17 th , 2008 to November 19 th , 2008, November 19 th , 2008 to December 10 th , 2008, a total of 55 days, that is one month and 25 days. This period is neutral, and is deducted from the total period of the delay. ACTIONS OF THE ACCUSED This aspect of the analysis of the reasons for delay is not intended to assign blame for the delay, but to assess all actions voluntarily taken by the accused, whether prudent or imprudent, that contributed to the delay in this matter.

Such action by the accused will be considered in assessing whether the overall delay in this matter is reasonable. On October 17, 2008, counsel for the applicant appeared in court, and I find, based on the court transcript, that counsel for the applicant agreed to conduct a Crown pre-trial prior to the next court date of November 19 th , 2008. On that return date, a Crown pre-trial had not been conducted by the applicant. Instead, counsel for the applicant informed the court that a Crown pre-trial had been scheduled for November 28 th , 2008.

No explanation was given by the applicant for his failure to conduct the Crown pre-trial before the November 19 th , 2008 date. Therefore, the delay during this period of time is attributed to the defence. The applicant chose to adjourn his trial on December 4, 2009 for the purpose of bringing an 11(

b) motion. There are a number of options that were available to the applicant. The applicant could have prepared for the 11(

b) motion ahead of the December 4, 2009 trial date. The applicant had some 11 months and 25 days to do so. The applicant could have also began the trial, and brought the 11(

b) application at the completion of the trial. Instead, the applicant requested, and was granted an adjournment of the trial to April 20 th , 2010. The applicant waived the period of delay from December 4 th , 2009 to April 28 th , 2010. There may have been a prudent technical reason for the applicant's decision. However, the applicant's action is a relevant consideration in assessing the reasonableness of the delay. ACTIONS OF THE CROWN This is a serious, but a very simple and straightforward over 80 case.

The Crown should have had disclosure ready for the defence at the first appearance date of October 2 nd , 2008. Disclosure was not ready until December 15 th , 2008, and therefore this 13 day delay is attributed to the Crown. LIMITS ON INSTITUTIONAL RESOURCES This refers to the period when the parties are ready for trial, or the system cannot accommodate them. The parties were ready to set a date for the first trial date on December 10 th , 2008. The system could not accommodate them until December 4, 2008. This 11 month and 25 day delay is attributed to institutional delay.

The second period of what could have been institutional delay, that is the period between December 4 th , 2009 and the second trial date of April 28 th , 2010, was waived by the applicant, and is deducted in this delay calculus. I should also indicate that this period of delay is

also attributed to the actions of the accused. The 8 to 10 month guideline for institutional delay in the Provincial courts, which were set in Morin , is not intended to be converted into a limitation period. ( Morin, supra , at paragraphs 47 and 55) As noted in Regina v. Ramos , and I quote, " Morin stands for the proposition that the mere fact that a period of institutional delay in an Ontario Court of Justice may fall within or outside the 8 to 10 month guideline is not an automatic determinant of the success or failure of an 11(

b) application. Such an approach will amount to treating the 8 to 10 month judicial guideline as the limitation period." OTHER REASONS FOR THE DELAY There were no other reasons for the delay in this case. PREJUDICE Now deviations in either direction from the guideline of 8 to 10 months institutional delay in Provincial courts can be justified by the presence or absence of prejudice. ( Morin , at paragraph 76) Quoting from that paragraph, and I quote, "Prejudice, in this context, is concerned with three interests of the accused that s.11(

b) protects; liberty as regards to pre-trial custody of bail conditions, security of the person in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge, and the right to make full answer and defence insofar as the delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise raise a defence." The applicant filed an affidavit and gave viva-voce evidence outlining the prejudice he says he has suffered as a result of the delay. The applicant has suffered a great deal of anxiety as a result of these charges.

A great source of stress and anxiety for the applicant has been the financial cost of defending this criminal charge. He has had to borrow money from his sister and mother to pay for his defence. Due to the financial stresses these family members are facing themselves, this has had an adverse impact on the family relationships he has with these family members causing additional emotional stress for the applicant. The applicant has also had to borrow money from a financial institution to pay for his defence.

He also indicated that his license was suspended pursuant to the 90-day administrative suspension, and that this impacted on his ability to work at his regular place of employment. However, he was accommodated and given other types of responsibilities. The applicant also had to sell an expensive vehicle at a financial loss in order to pay his legal bills. He also indicated that he had to work overtime to pay his legal bills. This has had an impact on his ability to repay his family members. All of these facts do illustrate the high cost of defending these types of offences.

However, they are expenses that are associated in the normal course of defending a criminal trial, and are not in any way related to the delay in this case. The applicant has expressed significant stress as a result of these charges. This has resulted in the applicant having to see a doctor, although no formal diagnosis has been made as a result. A portion of this stress relates to the normal type of stress that one would expect arising from the fact of being charged with a criminal offence. However, in circumstances of a lengthy delay, a portion of the stress can be attributed to that delay.

I do accept that as a result of the stress the applicant has suffered, he has had to consult a physician on two occasions. However, despite the stress suffered by the applicant, he failed to conduct a Crown pre-trial prior to the November 19 th , 2008 date as had been requested by the Crown, and he was also content to delay his trial for another 4 months and 25 days in order to bring an 11(

b) motion.

I have already indicated that the applicant's counsel had several months to anticipate and bring the 11(

b) motion on December 4 th , 2009. This fact significantly diminishes the impact of any stress, or any actual prejudice he may have felt as a result of any delays in this matter. For this reason, the applicant's actions to mitigate the impact of the delay on his well being is severely limited. In the result, I find that the applicant has suffered no actual prejudice as a result of the delay. BALANCING OF THE VARIOUS FACTORS There is a high societal interest in the resolution of criminal matters on their merits. This may be a simple and straightforward case, but it is a serious case.

The serious havoc drinking and driving offences cause in our society cannot be underestimated. These type of offences shatters families, it destroys and terminates lives. This fact is not lost on the court, and with such a serious offence, society's interest in the resolution of the case on the merits is heightened. There is also an individual's societal interest in the effective resolution of criminal cases within a reasonable time. The total amount of institutional delay in this case is some 11 months and 25 days.

With a Crown delay of 13 days, resulting in a total Crown and institution delay of some 12 months and 8 days. Despite the actions of the accused in delaying the trial until April 28 th , 2010, that action had no impact in causing the institutional or Crown delay that has been described. There is also no evidence that the applicant's failure to hold a Crown pre-trial prior to November 19, 2008 had any impact on the amount of Crown and institutional delay in this case.

In the result, I conclude that even in the absence of any actual prejudice, an institutional delay of 11 months and 25 days to bring a simple one day trial to trial in the Ontario Provincial Court is unreasonable. When the 13 days of delay attributed to the Crown is included, the resulting institutional and Crown delay of 12 months and 8 days for a simple and uncomplicated case, such as this one, is simply unacceptable. Prejudice is therefore inferred from the 12 month and 18 days of Crown and institutional delay, and on the specific facts of this case, the delay is unreasonable. The applicant's s.11(

b) motion is granted and the charges are stayed. **********

THIS IS TO CERTIFY that the foregoing is a true and accurate transcription of the recordings of MS. N. SAIKALI, as reviewed by Mr. Justice K. Barnes, to the best of my skill and ability. ............................ Arlene Gorewicz Certified Verbatim Reporter