R. v. McDevitt, 2011 ONCJ 773

COURT FILE No.: Region of Durham Citation: R. v. McDevitt , 2011 ONCJ 773 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — NATASHA McDEVITT Applicant Reasons for Granting a s. 11(

b) Charter Application Before Justice S.C. MacLean Application Heard and Ruling Given on November 30, 2011 Reasons for Ruling released on December 12, 2011 Ms. Kristen Pollock and Mr. George Hendry ................................................... for the Crown Mr. John Olver................................................................................................ for the Defendant MacLean, J.: [ 1 ] The Defendant submits that her rights pursuant to

section 11(

b) of the Canadian Charter of Rights and Freedoms have been infringed and has applied for a stay of proceedings pursuant to section 24(1) . The application was brought on the trial date because the Trial Coordinator’s Office could not find a date that the Court and Defence Counsel were both available prior to trial. On November 30, 2011 the Parties were advised that the s. 11(

b) Motion was granted, that the charge would be stayed and that Reasons would be provided on December 12, 2011. These are my Reasons. Overview of the Case and Complexity of Issues [ 2 ] On September 12, 2010, the Applicant was arrested and charged with one count of Exceeding 80 Milligrams of Alcohol in 100 Millilitres of Blood contrary to section 253(1) of the Criminal Code of Canada . The Information was sworn on September 15, 2010. [ 3 ] The allegations are that on September 12, 2011, P.C.

Crosbie of the Durham Regional Police Service was operating a fully marked cruiser southbound on Centre Street South in Oshawa. This is a one-way street and he observed Natasha McDevitt, the Applicant, driving her motor vehicle in the wrong direction. He stopped her vehicle to investigate. [ 4 ] When P.C. Crosbie spoke with Ms. McDevitt, he observed that she had glassy and red eyes. During conversation with her he detected an odour of an alcoholic beverage emanating from inside the vehicle. She advised the officer that she had been drinking alcohol at a party the previous night. P.C.

Crosbie formed the suspicion that she had alcohol in her body while operating a motor vehicle and read the demand for the Approved Screening Device. Upon providing a breath sample into the Approved Screening Device a “FAIL” was registered, thereby providing the officer with grounds to arrest for the Over 80 milligrams offence. Upon arrest she was read her Rights to Counsel, Caution and a Breath Demand for an Approved Instrument. [ 5 ] Ms. McDevitt was taken to 17 Division in Oshawa where she provided two samples of her breath into an Approved Instrument.

The first breath sample was analyzed to contain 210 milligrams of alcohol in 100 millilitres of blood. The second breath sample was analyzed to contain 198 milligrams of alcohol in 100 millilitres of blood.

[6] The Applicant was released from custody on a Promise to Appear with a first appearance date scheduled for October 1, 2010. [7] The case is relatively straightforward without complex issues, although some triable issues appear to have arisen with respect tothe functioning of the Intoxilyzer instrument. It was to be a blended trial with evidence relating to s. 8 and s.9 of the Charter being heardat the same time as the trial. An expert witness regarding the Intoxilyzer was to be called as part of the defence.

One day had been setaside for this trial. [8] After an adjournment request by the Crown was granted, a second trial date for this matter was scheduled for November 30,2011. It is agreed that the total time elapsed between the date the Applicant was arrested and the second trial date was 14.7 months (441days). It was apparent that due to the s. 11(

b) Application, the trial would not have been completed on November 30, 2011 so that acontinuation date would be required. The earliest date that would have been available to continue the trial was January 20, 2012, addingclose to 2 months (51 days) to the total delay until the trial could be completed. The total delay, therefore, is over 16.4 months (492days). It is conceded by the Crown that the delay in this matter exceeds the guidelines set out by the Supreme Court of Canada in R. v.Morin (SCC), [1992] S.C.J. No. 25 and R. v. Sharma (SCC), [1992] S.C.J. No. 26, requiring anexamination of whether the Applicant’s right to have a trial within a reasonable time pursuant to s. 11(

b) of the Charter has beeninfringed. The Principles to Apply in Relation to s. 11(

b) of the Charter [9]

Section 11(

b) of the Charter provides that “any person charged with an offence has the right … to be tried within a reasonabletime.” In R. v. Morin (SCC), [1992] S.C.J. No. 25, the majority of the Supreme Court of Canada held that the primarypurpose of the provision is the protection of the rights of the accused to security of the person, liberty and a fair trial. Speaking for themajority, Justice Sopinka stated at paragraph 28 that: The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place whileevidence is available and fresh. Justice Sopinka also recognized a secondary societal interest that is protected by

section 11(b), namely, that those accused of crimes bebrought to trial and dealt with according to law. In assessing delay, the Court must consider society’s interest in having the guilt orinnocence of its members adjudged on the merits of the case. There is a “collective societal interest in ensuring that those whotransgress the law are brought to trial and dealt with according to the law”. As the seriousness of the offence increases so does thesocietal demand that the accused be brought to trial. See Morin, supra, at paragraph 30. [10] It is settled law that when a violation of s. 11(

b) has been established that a stay of proceedings is the minimum remedy. Justice Arbour in R. v. Bennett (ON CA), [1991] O.J. No. 884 (O.C.A.) observed that “a judicial stay of proceedingsis the most powerful remedy available to sanction the infringement of the constitutional rights of an accused under s. 24(1) of theCharter” (at paragraph 43) and continued at paragraph 44 that, Both at common law and under the Charter, stays of proceedings for abuse of process have been granted sparingly, and only in the“clearest of cases”.

A stay is tantamount to an acquittal in that it effectively brings the proceedings to a final conclusion in favour of theaccused… By granting a stay, the Court, in effect stands between the accused and the state to prevent what otherwise would be a justresolution, on the merits of an allegation of criminal conduct. [11] The purposes of s. 11(

b) and the principles to be considered in addressing it are well summarized by Justice Durno inparagraphs 23 to 28 of R. v. Sychterz, [2005] O.J. No. 2722 as follows: 23 The purpose of s. 11(

b) is to expedite trials and minimize prejudice, not avoid trials on the merits: R. v. Morin, (SCC), [1992] 1 S.C.R. 771, 71 C.C.C.(3d) 1 at p. 24 (S.C.C.). In R. v. Qureshi, Khan and Giavorpoulos (ON CA),[2004] O.J. No. 4711 (Ont. C.A.), Laskin J.A. summarized the legal framework for s. 11 (

b) applications. The

section aims to protect theindividual rights of the accused, as well as the rights of society. It protects three individual rights: the accused's right to security of theperson, by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty, by minimizing the effectsof pre-trial custody or restrictive bail terms; and it protects the accused's right to a fair trial, by ensuring that the proceedings occur whileevidence is fresh and available, citing Morin. 24

Section 11(

b) also seeks to protect two societal rights. First, it protects the public's interest in having laws enforced, by havingthose who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(

b) seeks to protect the public'sinterest in having those accused of crimes dealt with fairly, citing R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45, 128C.C.C.(3d) 483 (S.C.C.) at p. 496. As the seriousness of the offence increases, so does the societal demand that the accused be broughtto trial: Morin, p. 13. 25 The determination of whether s. 11(

b) has been infringed requires the court to balance the individual and societal goals with thelength and causes of the delay. The

section is framed in terms of reasonableness, not whether the delay was of a desirable length: R. v.Seegmiller, (ON CA), [2004] O.J. No. 5004 (Ont. C.A.) (QL) para. 30, leave to appeal refused, [2005] S.C.C.A. No.64.

26 Courts have refrained from creating limitation periods for certain types of offences, leaving judges to exercise judgment, havingregard to the factors noted below. The exercise was described by Sopinka J. in Morin as follows: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical formula butrather by a judicial determination balancing the interests which the

section is designed to protect against the factors which eitherinevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra [R. v. Smith (SCC), [1989] 2S.C.R. 1120, 52 C.C.C.(3d) 97], "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay becomeunreasonable. 27 While the trial judge may not be required to specifically mention that she or he has considered society's interest in the prosecutionproceeding, it must be clear from the reasons that that vital consideration has been taken into account.

The failure to do so is an error inprinciple: Kovacs-Tatar, para 5; Qureshi, para. 41. 28 Four factors are to be considered: the length of the delay; waiver of time periods; reasons for the delay, including inherent timerequirements, actions of the accused, actions of the Crown, other reasons for the delay, and; prejudice to the accused: Qureshi, supra atpar 10. [12] The Ontario Court of Appeal in Batte (2000), 45 C.C.C. (3d) 498 at paragraph 55 confirmed that determining an issue ofthis kind is not a mathematical exercise.

The length of delay begins from the date of the charge to the scheduled date of the trial (seeMorin, supra). The decision as to whether s. 11(

b) has been infringed by that delay is not to be made “by the application of amathematical or administrative formula but rather by a judicial determination balancing the interests which the

section is designed toprotect against factors which either inevitably lead to delay or are otherwise the cause of delay.” Some delay is inevitable. The questionis when is it unreasonable? That question as to whether the Defendant was tried within a reasonable time is to be determined byconsidering and balancing the following factors (see Morin at paragraph 31): 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case; (

b) actions of the accused; (

c) actions of the Crown; (

d) limits on institutional resources; and (

e) other reasons for the delay; 4. prejudice to the accused. [13] The total delay in this case between the date the information was sworn and when the trial would be completed is 16.4months (492 days). This length of time warrants an inquiry by the Court. In conducting that inquiry the principal issues in this case arethe limits on institutional resources, actions of the Crown and prejudice to the accused.

The other criteria are not as significant in thedetermination of this Application. [14] All prosecutions have certain inherent time requirements which lead to delay; these include the first appearance, retainingcounsel, disclosure, and the resolution meeting. In R v Meisner [2003] O.J. No. 1948 at para 32, Justice Hill held that a period of twomonths is a normal feature of a case entering the Ontario Court of Justice. This period is to be considered neutral. Inherent timerequirements may be extended in cases that are more complex.

The actions of the parties that cause delay may also be relevant. (SeeMorin at paragraphs 33 to 46). In the Ontario

Summary Convictions Appeal case of R. v. Sychterz, [2005] O.J. No. 2722 at paragraph 74the appellate court indicated that any delays due to activities such as obtaining disclosure, retaining counsel, attending resolutionmeetings and Judicial pre-trial conferences, should be allocated as part of the inherent time requirements of the case. In Nadarajah, 2009ONCA 118, at paragraph 20 the Ontario Court of Appeal also held that the delay from the date that a Judicial Pre-Trial was set to theJudicial Pre-Trial was inherent time delay.

There was no Judicial Pre-Trial in this case. [15] The inherent time requirements of a case must include a consideration of whether adequate time was set aside for the trialin the first place. This issue was addressed by Justice Laskin in R. v. Qureshi, [2004] O.J. No. 2004 (O.C.A.) in paragraph 27 as follows: [27] The trial judge failed to account for the inherent time requirements of the case in four ways. His failure to do so is reviewableon a standard of correctness. See R. v. Chatwell (1998), (ON CA), 122 C.C.C. (3d) 162 at para. 10 (Ont.C.A.). ...

(ii) The second error relates to counsels’ time estimate for the preliminary inquiry. The Crown first estimated the preliminary would lastthree days, but later revised his estimate downward to accord with that of defence counsel. When the lawyers appeared on April 16,1999, to set a hearing date, they all agreed the preliminary would take three-quarters of a day. They fixed September 9, 1999. As the trial judge recognized, three-quarters of a day proved to be a “gross underestimate”. However, the trial judge did not properlycharacterize the consequences of the underestimate.

Here, the judgment of Doherty J.A. in Allen at p. 348 is controlling. There, mycolleague makes two points relevant to this appeal: the inherent time requirements can include adjournments required to findadditional court time when the initial time estimates proved inaccurate and these inherent time requirements are consideredneutral.

In making these points, Doherty J.A. emphasized that when a case is not completed within the time estimated, itscontinuation must recognize the legitimate demands of other cases in the system on both counsel and the court: When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete thatcase: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional courttime when initial time estimates prove inaccurate: R. v. Hawkins (1991), (ON CA), 6 O.R. (3d) 724 (Ont.

C.A.) at728, affirmed (1992), (SCC), 11 O.R. (3d) 64n (S.C.C.); R. v. Philip (1993), (ON CA), 80 C.C.C.(3d) 167 (Ont. C.A.) at 172-73. The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b)calculus. The recognition and treatment of such inherent time requirements in the s. 11(

b) jurisprudence is simply a reflection of thereality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with alegitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needsof all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side andinstantaneously provide those additional resources.

When the preliminary hearing did not finish on September 9, 1999, it was adjourned to October 27, 1999, then further adjourned for twomore hearing days on February 17 and 18, 2000, – to this point a total period for the preliminary of five and one-quarter months. Ideally,as this court said in Satkunananthan, once a preliminary hearing goes beyond its estimated time all participants should try toschedule its completion as soon as possible, preferably on consecutive days. That did not happen here. Thus, part of the five andone-quarter months should be assigned to institutional delay.

Consistent with Allen, however, part of the period should also be characterized as neutral, part of the inherent time requirements of thecase. I would assign two months to institutional delay and three and one-quarter months to the inherent time requirements of the case. [Emphasis added by the Court] [16] In this case, the Court does not know whether adequate time was set aside for the trial since it never proceeded. The factthat a continuation date would have been required to complete the trial on January 20, 2012 is due solely to the fact that no earlier datefor the s. 11(

b) Application could be provided by the Trial Coordinator between September and November 30, 2011 given the scheduleof both Defence Counsel and the Court. [17] Delay in providing disclosure is an issue raised in this case. The decision of Nadarajah, supra, confirmed once again thatdelay caused by late Crown disclosure is attributed to the Crown. At paragraph 24 the Ontario Court of Appeal states: [23] On the application, the Crown accepted that the 64 days from September 22 to November 25 should be considered eitherCrown or institutional delay.

The application judge found that the period from July 16 to August 15 was occasioned by the Crownproducing a surprise witness not previously disclosed to the defence. But he found that the period thereafter was properly characterizedas inherent time dictated by the availability of counsel and the judge “…except perhaps October 1 to November 25” presumably becauseof the availability of appellant’s counsel.

In the end, however, the application judge accepted the Crown’s assessment of delay in theOntario Court including, by inference, some 64 days of the six months to be assigned to either the Crown or institutional delay. [24] I see no error in this allocation. I agree that the 30 days from July 16 to August 15 required by late Crown disclosure is theresponsibility of the Crown.

I do not agree that, because of this, the Crown must accept responsibility for the entire six months thereafter.All parties and the court were ready to proceed on August 15, but were prevented from doing so by the blackout, an event completelyextraneous to the justice system that necessitated further rescheduling and therefore further delay. In my view, that delay was caused bythe blackout, not the Crown’s late disclosure a month earlier. This extraneous event, which obviously took everyone by surprise, cannotbe said to be the Crown’s responsibility, and distinguishes this case from R. v.

N.N.M. (2006), (ON CA), 209 C.C.C.(3d) 436 (Ont. C.A.). [18] When looking at delayed disclosure, however, it is important to consider the comments of the Ontario Court of Appeal inR. v. Kovacs-Tatar (ON CA), [2004] O.J. No. 4756 (O.C.A.). At paragraph 47 it clearly states that a Court may

determine that Counsel has not acted reasonably in insisting that he or she receive all disclosure before setting a trial date. In that case achiropractor was charged with sexually assaulting a patient. Defence Counsel knew that the Crown’s expert’s report would be availablemonths before trial with ample time to retain a defence expert. The Court of Appeal indicated that while there is a continuing obligationon the Crown to make disclosure, the Crown is not obliged to disclose every last bit of evidence before a trial date is set.

The Defencedoes not give up any “Stinchcombe rights” by agreeing to set a trial date. Normally, once enough initial disclosure has been provided tomeaningfully assess the triable issues and estimate the time required for trial, a trial date should be set and the remaining disclosureprovided in the interim. See R. v. N.N.M. (ON CA), [2006] O.J. No. 1802 (O.C.A.) at paras. 37-38 and R. v. Lahiry;R. v. Carreira; R. v. Davidson, R. v. Shelson 2011 ONSC 6780 , [2011] O.J. No. 5071 (Ont.S.C.).

In the latter case, JusticeCode at paragraph 114 wrote, “it is only when missing disclosure is truly material to “crucial steps” in the process, like election and plea,that it will justify delay at these early stages. [19] A waiver of delay must be clear and unequivocal. Consent to a trial date without any comment or explanation mayamount to waiver but not if it merely acknowledges the inevitable. All prosecutions have certain inherent time requirements which leadto delay; these include the first appearance, retaining counsel, disclosure, and the resolution meeting. In R v Meisner [2003] O.J.

No.1948 at para 32, Justice Hill held that a period of two months is a normal feature of a case entering the Ontario Court of Justice. Thisperiod is to be considered neutral. Inherent time requirements may be extended in cases that are more complex. The actions of theparties that cause delay may also be relevant. See Morin at paragraphs 33 to 46. [20] When considering the actions of the accused, “this aspect of the reasons for the delay should not be read as putting the"blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering thisfactor.

Included under this heading are all actions taken by the Accused which may have caused delay.” The court is concerned withactions of the Accused which are voluntarily undertaken. “Actions which could be included in this category include change of venuemotions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc.” The Courts do notsuggest that an accused should sacrifice all preliminary procedures and strategy, however if an accused chooses to take such action itwill be taken into account in determining what length of delay is reasonable: see Morin, supra, at paragraph 39. [21] Lack of urgency on behalf of an Applicant can be demonstrated by repeated adjournments of a matter which prolong thehearing (even where those adjournment requests are reasonably sought by Counsel).

These adjournments can be attributed to either theinherent time requirements of the case or to the actions of the accused or Defence Counsel that fall short of waiver: See R. v. Qureshi (ON CA), [2004] O.J. No. 4711 (Ont.C.A.) at paragraph 29. A Court can determine that these unwaived timeperiods are not excessive in the circumstances (see paragraph 37 in Qureshi as an example). An inference adverse to the Applicant maybe made when he or she does not seek to expedite the proceedings.

See paragraph 40 of Qureshi. …throughout the many court appearances in this case, defence counsel and their clients never inquired about earlier dates and did notseek to expedite the proceedings. Overall, the record shows that the respondents demonstrated little concern about the slow pace of thelitigation. [22] Although Defence Counsel is not required to hold himself in a state of perpetual availability, neither is the Crownresponsible for “delay caused by Defence Counsel’s calendar.” This type of delay should be considered neutral. See R. v. Godin 2009SCC 26 , [2009] S.C.J. 26 at para. 23 and R. v.

Gullbride; R. v. Thompson [2006] B.C.J. No. 2047 (B.C.C.A.) at para. 108. This type of analysis should also apply to Defence Counsel’s vacation where it is scheduled months in advance. [23] The time period for delay due to the limitation of institutional resources starts to run when the parties are ready for trialbut cannot be accommodated by the system. In this regard, Justice Sopinka noted that “[I]t is appropriate for this Court to suggest aperiod of institutional delay of between 8 to 10 months as a guide to Provincial Courts.”: Morin, supra, para 55. The guidelines are notto be treated as limitation periods.

The application of these guidelines will be influenced by the absence or presence of actual prejudice;that is, additional prejudice beyond that inherent in any delay. [24] It is rarely the case that counsel is immediately available for trial at the set date appearance. In R. v. Lahiry; R. v.Carreira; R. v. Davidson, R. v. Shelson 2011 ONSC 6780 , [2011] O.J. No. 5071 (Ont.S.C.), Justice Code held that preparationtime of one to just under two months is appropriate for the straightforward type of case that the Applicant is charged with here.

JusticeCode indicated that this preparation time should be considered neutral, as it is an inherent time requirement for a case. Duringsubmissions, Mr. Olver advised the Court, and I accept, that he would have been ready for trial in this case in much less time than thatestimated by Justice Code. Given that the Crown has accepted as an admitted fact that Mr.

Olver would have been available onapproximately 80 to 100 earlier days (between December 2010 August of 2011) than the actual date set for trial, I do not consider it to beappropriate in this case to deduct time for case preparation as suggested by Justice Code. Even if 1 month were to be deducted frominstitutional delay in this case to allow for preparation time, it would still leave 12.5 months of Institutional and Crown delay asdescribed below. The Law with Respect to the Issue of Prejudice [25] In R. v. K.G., 2009 ONCA 131 the Ontario Court of Appeal cited with approval its earlier decision in R. v.

Qureshi (ON CA), [2004] O.J. No. 4711 (O.C.A.) at para. 14: Two kinds of prejudice are relevant [on a s. 11(

b) application]. First, the court may infer prejudice from the delay itself and is morelikely to do so the longer the delay. On the other hand, an accused’s action or inaction that shows a desire to avoid a trial on the meritsmay negate any inference of prejudice from the delay itself. Second, the accused or the Crown may lead evidence to show eitherprejudice or an absence of prejudice.

[26] The right to security of the person (guaranteed under

Section 11(

b) of the Charter) “seeks to minimize the anxiety,concern and stigma of exposure to criminal proceedings” (see Morin, supra at paragraph 28). The Courts recognize that the prejudicessuffered by all accused persons by virtue of pending criminal accusations include stigmatization of the accused, loss of privacy, stressand anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, anduncertainty as to the outcome and sanction (see s R. v. Mills, (1986), (SCC), 26 C.C.C. (3d) 481 (S.C.C.) at 538 to 539and R. v.

Askov, (1990), (SCC), 59 C.C.C. (3d) 449 (S.C.C.) at 455 to 456). [27] Prejudice to the accused can be inferred from prolonged delay. “The longer the delay the more likely that such aninference will be drawn.” Prejudice can occur from adverse impact of the delay upon the accused’s ability to provide full answer anddefence. Prejudice can result from an ongoing restriction on the accused’s liberty, through pre-trial custody or release conditions. SeeMorin, supra at 23 to 24. [28] Specific prejudice is that which is beyond what is typically expected when a Defendant is faced with an offence.

In R. v.Kovacs-Tatar, (ON CA), [2004] O.J. No. 4756 (O.C.A.) at paragraphs 32 to 33, the Court indicates that “the focusof prejudice under s. 11(

b) is the prejudice flowing from a situation ‘prolonged’ by delay rather than the mere fact of being charged witha criminal offence”. The Court further indicates at paragraph 37 that the Defendant bears the responsibility of taking the initiative toalleviate the prejudice (quoting Justice Arbour in Bennett, (1991), (ON CA), 64 C.C.C. (3d) 449 at 478 (O.C.A.): An accused who claims prejudice, beyond the prejudice common to most accused and inferred from any delay, is claiming anentitlement to a speedier trial than other accused in apparently similar circumstances.

The only way for the system to accommodate thatclaim is to hear it expressed. There comes a point…where an accused who is suffering from a special prejudice from the delay of histrial must bring his or her plight to the attention of the prosecuting authorities and the courts. [29] The significance of actual or additional prejudice was highlighted in R v Malcolm [2008] O.J. No. 4665 at paragraphs 33-34. In that case Justice MacDonnell made the following observations: 33 The Supreme Court of Canada has held that the minimum remedy for a violation of s. 11(

b) is a stay of proceedings: R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, per Lamer J., at p. 614. Identifying the precise point at which, by reason of delay, societyloses the right to have serious charges determined on their merits and an accused becomes entitled to what is tantamount to a

summaryacquittal is a difficult and case-specific exercise. Some guidance, however, may be derived from the Supreme Court’s generaljurisprudence in relation to when a stay of proceedings will be appropriate. The Court has made it plain that this “drastic remedy” is aweapon of “last resort”, to be employed only in the clearest of cases: see, e.g. R v O’Connor (SCC), [1995] 4 S.C.R. 411,103 C.C.C. (3d) 1. A stay granted for delay should not be seen as an exception to those principles but rather as a particular application ofthem.

This suggests that the threshold for a violation of the right should be commensurate with the remedy that such a violationcommands. Combining a low threshold for a violation with an automatic award of a stay would be inconsistent with the balancing that is a necessary component of the process of defining constitutional rights: see, e.g., Peter Hogg, Constitutional Law in Canada (5th),Carswell, 2007, at pp. 53-55; 64-65; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128, per LaForest J., concurring, atparagraph 68. 34 Given that the primary purpose of s. 11(

b) is to protect the right of the accused to a fair trial, liberty, and security of the person,the primary focus of the inquiry into whether the right has been infringed should be on whether the accused has suffered any real andsubstantial prejudice to one or more of those interests. In the absence of such proof “the basis for the enforcement of [s. 11(b)] isseriously undermined”: R. v. Morin, supra, at paragraph 61; R. v. Cranston et al, 2008 ONCA 751, at paragraph 73.

A failure toapproach the analysis in this manner risks trivializing a constitutional right and eroding public confidence in the proper administration ofjustice. [30] In K.G., supra, in examining the facts of that case the Court of Appeal gives some guidance to trial courts as to how tocharacterize certain forms of prejudice. The elderly accused was facing historical sexual offence cases alleged to have occurred some 30to 34 years before his arrest. He suffered from post-polio syndrome resulting in numerous health complications that made it difficult forhim to travel in the winter.

With respect to prejudice, the Court of Appeal concluded that (at paragraphs 38 to 43 and 47 to 48): 38 The respondent’s physical disability and the particular stress that causes for him when he is required to travel in the wintermonths does not arise as the result of the criminal charges he faces, nor does it arise from any delay in bringing those charges to trial.These particular difficulties would be present even if K.G. had been tried in December 2005, shortly after the charges were laid. It doesnot give rise to actual prejudice.

In reading the trial judge’s reasons as a whole, I accept the Crown’s submission that the trial judge didequate the respondent’s “travel prejudice” with the effects of being charged with serious criminal offences, and in so doing improperlyfound that actual prejudice flowed from the delay. 39 Clearly there is evidence that the fact of these charges has caused stress to the respondent and has been a source of frictionbetween him and his wife, a fact true of anyone facing serious criminal charges. Institutional delay does not cause this stress – it canonly at best prolong, or exacerbate it.

The respondent was prescribed medication for stress shortly after his arrest. On his evidence, onlythe amount he took increased when the case was adjourned. In other words, his need for medication to deal with the stress did not ariseout of the delay – at best it was somewhat exacerbated by it. 40 No issue of delay was raised before October 22, 2007. The real delay about which complaint is made amounts to some two andone-half months – from October 22, 2007 to January 7, 2008.

Although the respondent mentions the continued stress of having thesecharges outstanding against him for this further period of time, again, it must be noted that he did not avail himself of the earlier dates

offered at the time the matter was adjourned to December 3, 2007. 41 In my view, the trial judge placed too much weight on the finding of prejudice, given that the contentious delay was primarilyconfined to this one short period. 42 In so far as the respondent’s liberty interest is concerned, there was minimal interference in this case. The respondent wasreleased on his Promise to Appear for both court and fingerprinting and gave an undertaking to attend court in Elliot Lake on November15, 2005.

The respondent was to advise the investigating officer of any change of address, abstain from communicating with thecomplainant J. H. and to abstain from alcohol or other intoxicants, except as prescribed. The respondent filed a designation of counseland accordingly did not personally appear – nor was he required to – on several of the occasions when his case was spoken to.

He wasnot incarcerated, had no curfew and was not subject to any reporting requirements. 43 There is no evidence, nor is it contended, that the delay has in any way impacted on the respondent’s fair trial rights in thesense that evidence has been lost or witnesses become unavailable because of delay. ... 47 Any prejudice to the respondent by reason of the delay here was slight.

In the circumstances it is appropriate that the guidelineas expressed in Morin be applied to reflect this fact. 48 In the absence of any real prejudice beyond that experienced by all accused persons, and the important public interest in a trialon the merits, I am of the view that the delay in this case was not unconstitutional. [31] The issue of prejudice was also examined in Nadarajah, 2009 ONCA 118. On the issue of prejudice Justice Goudgewrote at paragraph 29: 29 The application judge found that the appellant had not established prejudice.

While the appellant tendered no evidence ofprejudice to his defence, his affidavit recited anxiety and stress, and adverse effects on his education and his ability to attend familyevents due to the delay. While this constituted some prejudice, it could not be said to be more than modest. For five months of thedelay, the appellant was incarcerated on other charges.

Up until that happened, the terms of his release permitted him to continue hiseducation and participate in family events to some degree, albeit with some inconvenience to himself and those required to accompanyhim. [32] In Nadarajah the Court found that there was only “modest” prejudice and concluded that there was no unreasonable delayin spite of the fact that the charges (which were serious and involving some complexity) had taken 33.3 months in total to get to trial inthe Superior Court.

Of the total delay 12.6 months of the 23.3 months in the Ontario Court and 6.4 of the 10 months in the SuperiorCourt was attributed to Crown or institutional delay. In concluding that the delay in the Ontario Court was “only modestly in excess ofthe guidelines set for institutional delay” it is apparent that the limited prejudice to the Appellant was an important factor (see paragraph32): [32] I conclude that, in all the circumstance of this case, the application judge was correct in his ultimate assessment. The delay wasnot unreasonable. This was not the simplest of cases.

It necessarily involved multiple accused. The charges were serious. The delay inthe Ontario Court is only modestly in excess of the guidelines set for institutional delay by the Supreme Court of Canada. In theSuperior Court that guideline was not exceeded at all. And the appellant could be said to suffer only limited personal prejudice. Inmy opinion, the appellant’s s. 11(

b) rights were not violated. This ground of appeal must be dismissed. [Emphasis added by the Court] [33] Where an accused is prejudiced in some way that is not apparent beyond the usual inferred prejudice, he or she bearssome responsibility to take initiative in alleviating that prejudice by bringing those concerns to the attention of the Crown and the Court. See R. v. Bennett (ON CA), [1991] O.J. No. 884 (O.C.A.) and R. v.

Ouellet 2000 BCCA 556 , [2000] B.C.J.2069. [34] Any prejudice that an accused person has suffered as a result of delay must be balanced against the seriousness of theoffence and the societal interest in bringing the accused to trial. See R. v. Sharma, supra, and R. v. Salt [2000] O.J. No. 160 (Ont.S.C.). In drinking and driving cases, the Court accepts that it is especially important to balance society’s interest in a trial on the merits. AsJustice Code states at paragraph 89 of R. v. Lahiry; R. v. Carreira; R. v. Davidson, R. v.

Shelson, supra: “…for over twenty-five years now, drinking and driving has been regarded as a very serious offence. Indeed, it has been authoritativelystated that, “it has a far greater impact on Canadian society than any other crime”, that it is “clearly the crime which causes the mostsignificant social loss to the country”, and that “every drinking driver is a potential killer”.

[Citations omitted] [ 35 ] Prejudice may be inferred from the length of delay and, at some point, may be such that a stay of proceedings is required without proof of actual prejudice. However, most cases in which

section 11(

b) of the Charter is engaged are not of this kind; rather they invite a balancing of the delay and prejudice. In such cases, evidence of actual prejudice, suffered because of the delay, is important. Proof of significant actual prejudice will inevitably lead to stricter adherence to the guidelines. Where such proof is lacking the basis for enforcement of the Charter right is undermined. The purpose of the right is to expedite trials and minimize prejudice, not to avoid a trial on the merits.

History of Dates in the Proceedings and How the Delay in this Case is Attributed [ 36 ] Exhibit 1 filed on this Application is a book of materials which includes a Factum, a copy of the Information, the Affidavit of Natasha McDevitt, transcripts and letters. They assist in determining the history of these proceedings. [ 37 ] On September 12, 2010 the Applicant was arrested and charged with the offence of Over 80 mgms. [ 38 ] On September 15, 2010 the Information was sworn. The elapsed time to calculate delay commences from this date forward. The first appearance date was set for October 1, 2011.

These 16 days are part of the normal intake period. [ 39 ] Prior to her first appearance in court the Applicant sought out and engaged Counsel. The Court accepts that she was actively pursuing her case to move it forward from the outset. [ 40 ] At no time did Ms. McDevitt waive any delay or contribute to it. She obtained the assistance of Counsel prior to her first appearance.

Having obtained basic disclosure, Defence Counsel acted responsibly by immediately asking for the outstanding disclosure that he required in order to determine whether to set a trial date and whether an expert witness would be required to testify for the defence. [ 41 ] On October 1, 2010 the Applicant appeared at court for her first appearance accompanied by Defence Counsel. She received her initial disclosure and the matter was adjourned to October 29, 2010 to be spoken to, in order to allow Counsel to meet with the client, review disclosure and receive instructions.

The delay from the date the information was sworn on September 15, 2010 to October 29, 2010 is part of the normal intake process and is neutral time. [ 42 ] On October 7, 2010, Ms.

McDevitt met with Counsel and reviewed disclosure as well as the surrounding circumstances surrounding the charge. [ 43 ] On October 8, 2010 Counsel wrote a letter to the Crown Attorney’s office requesting disclosure of all video/DVD disclosure and in particular the breath room video, any surveillance video, the booking and parade video as well as any witness statements. [ 44 ] During submissions made on this Application, Defence Counsel, Mr. Olver, advised the Court that video disclosure of the breath room in particular was very material to the defence. The Crown did not take issue with this position.

The initial paper disclosure in this case revealed that there was an “ambient fail” with respect to the taking of the first breath test sample and an invalid sample with respect to the taking of the second breath test. The Defence was of the view that this raised some significant issues regarding what had taken place during the breath tests that required the video to be examined to allow follow-up in this issue. Mr. Olver needed to explore what defences might arise from these irregularities, discuss them with Ms. McDevitt and obtain instructions from her about how the Defence would proceed.

This included a decision about whether an expert witness would be required to testify for the Defence. All of this needed to be done before an accurate estimate of the time required for trial could be provided in order to set a date for trial. I accept that given the specific Intoxilyzer issues in this case, this disclosure was material to crucial steps in the process. I also find that it was reasonable for Counsel to wait until the breath room video was disclosed and reviewed with his client before agreeing to set a trial date.

This was necessary to determine whether a trial would be set at all and if so to properly estimate the time required for trial. [ 45 ] Pursuant to the usual disclosure procedures currently in place, the breath room video would normally have been provided to Counsel within a few weeks following a written request. This means that it should have been provided to Defence Counsel before the second appearance on October 29, 2010, in sufficient time to allow Counsel to review it with his client and obtain instructions.

The breath room video was not available to be picked up, however, until November 17, 2011, over two months after the arrest. Mr. Olver was not aware that it was available to be picked up when he wrote to the Crown’s office a second time on November 22, 2011, requesting the same materials sought in his earlier letter. The videos were, in fact, picked up by the Defence on November 24, 2011 and reviewed by defence Counsel on December 8 and 9, 2010. Counsel then met with Ms. McDevitt to discuss these additional materials on December 10, 2010.

This was 1 day prior to the “90 day window expiry” on December 11, 2010, which affects the timing of when an accused person might wish to plead guilty to take advantage of the driver’s licensing provisions allowing them to apply under the new interlock provisions in Ontario to get their license back. The Crown on this Application advised me that breath room videos can normally be provided in less than one month from the date the Defence asks for them.

There was no explanation as to why it took longer than normal in this case. [ 46 ] Frankly, I can see no reason why the video of the breath room should not be provided to an accused person with the initial disclosure on the first appearance. Mr. Olver advises that this used to happen, but that currently a written request from the Defence is necessary to trigger the production of a Defence copy. The breath room video/DVD is evidence which is “captured” on the date of arrest. It exists the moment the DVD recording is stopped. It is simply a matter of burning a disc which takes a matter of minutes.

The procedure of copying this evidence is simpler and should take less time than the written reports of the officers which must be prepared and typed or written out by the officers following their investigation. In this day and age, with DVD technology allowing

this evidence to be produced easily and quickly, it is unacceptable that an accused person should have to wait two months for this type of disclosure. This is particularly so in light of the “90 day window” discussed above with respect to decision-making for guilty pleas in Over 80 milligrams cases. [ 47 ] On October 29, 2010, Mr. Olver advised the Justice of the Peace that he had not received the requested disclosure yet and that he needed it to follow up with his client. The Crown advised that a memorandum had been sent to the police requesting this disclosure.

The matter was adjourned for a further 3 weeks to November 19, 2010 to allow the disclosure to be provided to the Defence. I attribute all of the 21 days of this delay to the Crown due to the delayed disclosure. Even though the disclosure was ready to be picked up by November 17 th , it would not have been reasonable to expect Defence Counsel to have had time to review it with his client prior to November 19 th .

Delivery of disclosure on virtually the eve of a court appearance should normally mean that any delay caused will be attributed to the Crown. [ 48 ] On November 19, 2010, as indicated above, Defence Counsel was not aware that the videos were ready to be picked up on November 17, 2010. Even if they had been picked up by that date, as indicated above, I accept that this would not have allowed sufficient time for the Defence to review them, meet with the Applicant and obtain instructions prior to November 19 th , and that a further adjournment of 1 to 2 weeks would have been necessary to allow this to occur. Mr.

McRae, appearing for the Defence, advised the Justice of the Peace on November 19 th that they were still awaiting disclosure, requesting that the case be adjourned to December 10, 2010. Mr. Newell, appearing for the Crown, requested that if there were s. 11(

b) Charter concerns that a trial date be set that could be vacated if it turned out to be unnecessary. Mr. McRae advised the Court that without the breath video the Defence could not accurately assess the length of time required for trial. As indicated earlier, I accept that it was necessary in this case for the Defence to review the breath room video with their client before being in a position to advise the Court about how much time would be required for trial, or if a trial was necessary at all.

I find that of the 21 days up to December 10 th , that 14 of them are neutral time which would be a reasonable period in which to allow Defence Counsel sufficient time to review the videos with his client. The remaining 7 days I attribute to the Crown due to the delayed disclosure. That delay would have been unnecessary if the Crown had provided the video to Defence Counsel prior to October 29, 2010. [ 49 ] On December 10, 2011 Mr. Olver appeared and set a full day for trial on September 20, 2011.

The Court had offered August 29, and September 15, 2011, however Defence Counsel quite reasonably was unavailable due to his vacation

schedule during that time period. Mr. Olver advised the Court during submissions on this Application that he had scheduled his vacation from mid-August to mid-September 10 months in advance. A Status Hearing was also scheduled in this case for June 24, 2011. The Crown accepts that between December of 2010 and mid-August of 2010 (which was the earliest trial date offered by the Court on July 26, 2010 – see paragraph 23 below) that Mr. Olver was available to conduct this trial on approximately 80 to 100 earlier court days.

Of the 284 days of delay from December 10, 2010 to the first trial date on September 20, 2011, I deduct 30 days of neutral time for the period during which Mr. Olver, quite reasonably, was unavailable during his vacation period. Some other Judges might characterize those weeks as Defence delay, but since it is not what I would describe as “conduct of the Defence”, in my view this is more fairly characterized as neutral time.

This leaves 254 days of institutional or systemic delay to the first trial date. [ 50 ] On June 24, 2011 at the Status Hearing, both the Crown and Defence confirmed that the trial was ready to go ahead on September 20, 2011. Mr. Olver advised Justice Halikowski that he would be filing a Charter application and that an expert, Dr. Mayer, would be providing a report which would be forwarded to the Crown as soon as it was received. Mr. Olver confirmed that the Charter application related to s. 8 and s. 9 trial issues and not s. 11(

b) delay. During this Application Mr. Olver confirmed that there were no delay concerns if the matter had proceeded as scheduled on September 20, 2011. The issue arose once the Crown sought an adjournment of the first trial date. [ 51 ] In spite of having confirmed at the Status Hearing (through a Certificate of Readiness) that witnesses were available for the September 20, 2011 trial date, on July 26, 2011, the Crown brought the matter forward and applied for an adjournment of the trial.

During this Application it was put before me by way of admitted facts, that the adjournment was sought because a material witness, the arresting officer P.C. Crosbie, was going to be on annual leave out of the country to attend a wedding at the time of the scheduled trial. The call sheet had gone out to that officer requiring him to attend as a witness in March of 2011. The officer had requested that the matter be adjourned in a written memo dated July 8, 2011, long after he knew of his obligations to attend court as a witness.

It is clear that the Crown brought the request for adjournment on a timely basis in relation to when they received the request from the officer. Justice Stone, who granted the Crown’s adjournment request on July 26 th , was not apprised of when the officer had received his call sheet and when he had submitted his adjournment request. The Defence opposed the Crown’s adjournment application, especially in light of the fact that the date had been confirmed by the Crown at the Status Hearing. Counsel also advised Justice Stone that the Applicant had suffered prejudice including anxiety over waiting for her trial.

Justice Stone observed that the nature of the prejudice described was consistent with inferred rather than specific prejudice. Justice Stone was not advised of any further details of the specific prejudice that was brought to my attention during this Application (which will be described in further detail later in these Reasons).

Justice Stone offered earlier trial dates than the original one scheduled for September (the dates offered were in August, 2011) but Defence Counsel could not take advantage of those dates due to his pre-scheduled vacation. [ 52 ] As a result of the granting of the adjournment application, a new trial date was scheduled for November 30, 2011. This was the first date offered by the Trial Coordinator after the vacation period scheduled months earlier by Mr. Olver. This delay of 51 days is attributed to the Crown. [ 53 ] Following the setting of the new trial date, Mr.

Olver met with his client to discuss bringing this s. 11(

b) Application. After obtaining and reviewing the transcripts in this matter Mr. Olver received instructions to proceed with this Application. In early September of 2011 he asked the Trial Coordinator for a date prior to the November 30 th trial date to argue the s. 11(

b) issue. Unfortunately, due to my fall schedule, which included a number of multi-day matters, and Mr. Olver’s busy schedule, no date prior to trial could be provided. This meant that on November 30 th , it became apparent that if the trial were to proceed following the argument of the s. 11(

b) Motion, that additional time would be required for it to be completed. On November 30, 2011, the Trial Coordinator advised that the earliest date that this trial could continue to be completed would have been January 20, 2012. Since delay is to be

calculated to the date when the trial would be finished, this additional 51 days is characterized as Institutional or Systemic Delay. [ 54 ] The following chart summarizes the history of the proceedings and how I have allocated the delay in this case: Date Time Elapsed Allocation September 12, 2010 Offence date 0 Not applicable September 15, 2010 Date Information Sworn 0 [Elapsed time commences from information being sworn] Intake October 1, 2010 (+16) 16 days Intake October 29, 2010 (+28) 44 days Intake/Neutral November 19, 2010 (+21) 65 days Crown December 10, 2010 (+21) 86 days 14 days Neutral 7 days Crown September 20, 2011 First Trial Date (+284) 370 days 30 days Neutral 254 day Institutional November 30, 2011 Second Trial Date (+71) 441 days Crown January 20, 2011 Continuation of Trial (+51) 492 days Institutional Total Delay 16.4 months (492 days) Total Institutional + Crown Delay 13.5 months (404 days) [ 55 ] The allocation of the delay in this case can be summarized as follows: 44 days is attributable to “Intake” time and 44 days is attributable to “Neutral” time.

Including the time to complete the trial with a continuation date of January 20, 2012, 305 days is attributable to “Systemic/Institutional” delay. Finally, 99 days is attributable to “Crown” delay as a result of late disclosure and the adjournment of the first trial date. Therefore of the 16.4 months (492 days) of total delay, 13.5 months (404 days) are due to Institutional and Crown delay. This is far in excess of the guideline of 8 to 10 months for cases of this type as suggested by the Supreme Court of Canada. This unacceptable delay would be sufficient to find a breach of the Applicant's s. 11(

b) rights, but compounding this is the specific prejudice experienced by Ms. McDevitt in this case. Claims of Specific Prejudice Suffered by the Applicant [ 56 ] The Applicant filed an affidavit in support of this Application. She also testified. Ms. McDevitt claims that in addition to the usual inferred prejudice that she has suffered actual or specific prejudice. For the purposes of this analysis it is important to distinguish between prejudice that arises simply from the fact of being charged and prejudice that arises because of the delay in coming to trial. [ 57 ] Ms.

McDevitt has never been charged with a criminal offence before and has no other charges pending. She is 28 years old and still lives with her parents, although she would like to move out if she could afford to do so. [ 58 ] The Applicant has been employed at a Tim Horton's store for 8 years and has been the store manager for the last 2 years. She has been looking into enrolling in a Personal Support Worker program for about the past 1 ½ years, but has not proceeded forward with this future goal due to this pending criminal charge. From researching it on the internet and speaking to friends, Ms.

McDevitt believes that if she were to be convicted and end up with a criminal record that it would affect her ability to be hired to work as a Personal Support Worker. She conceded that she might be able to study in that field, but in fairness to her, there might be no point in leaving her current position to study for an occupation in which she could not find employment in the future. In her Affidavit Ms.

McDevitt states, “The delay in having my trial and dealing with those allegations has only added to my feelings of directionlessness as I am unable to commit to any changes in my life at this time.” She testified that she feels she has been putting her life on hold until these charges are disposed of. [ 59 ] Ms. McDevitt has also been unable to move out of her parents’ home while these charges are pending because of legal expenses. She had looked into moving in with a friend but could not afford to because of the cost of a lawyer for this case. She has borrowed money from her parents to pay for her legal costs.

Instead of paying rent as she had done previously, all of that money is now used to pay back her parents for legal fees. The Applicant agreed that the cost of the trial was going to be a significant amount that would have to be paid regardless of when the matter was tried. Through her Affidavit and testimony, however, it was also apparent that the longer the matter is outstanding in the courts, the greater the financial strain is on her resources including increased legal costs. These increased legal costs included bringing the s. 11(

b) Application and ordering and paying for the required transcripts. An expert witness had to be put on hold for November 30, 3011 while the s. 11(

b) issue was litigated. Ms. McDevitt agreed in Cross-Examination that she has benefited from remaining at home by having the support of her parents while she has been facing this criminal charge. [ 60 ] The Court accepts that the Applicant has suffered some specific prejudice by the delay in having these charges disposed of sooner. It is clear that the charge itself has caused Ms. McDevitt to delay following up on future plans to seek education and

employment as a Personal Support Worker and to move out of her parents’ home. It is accepted, however, that the delay in having the charge tried has lengthened the time during which she has had to “put her life on hold”. It is also clear that there have been specific increased legal costs directly related to the delay in this case. [ 61 ] Ms. McDevitt also testified that she has been very “stressed out” since the charges were laid, and that she has had trouble sleeping. She is currently in therapy due to her increasing depression as a result of her delayed trial.

She has been suffering from a pre- existing anxiety condition which was first diagnosed in 2002. Her condition worsened while waiting for this trial. Ms. McDevitt had never wanted to take medication for her anxiety in the past, however, while waiting for trial, her anxiety has increased to the point that as of October 2011, she has been prescribed medication for her both her anxiety and her inability to sleep. Due to suffering from sleeplessness, it has adversely affected her work performance and has further worsened her emotional well-being. In Cross-Examination Ms.

McDevitt very fairly agreed that she has been anxious about the outcome of the case and testifying in general and it was not just because of the delay which has arisen in trying the matter. [ 62 ] The Court finds that Ms. McDevitt has experienced actual and specific prejudice by having her emotional health compromised by the delay in this case. She has had to take medication for both anxiety and sleep disturbance, both of which were unnecessary prior to the adjournment of the first trial date. There is no doubt that the delay in having this matter tried has worsened her pre-existing anxiety condition.

This is above and beyond the usual anxiety associated normally experienced by all persons awaiting their trial. [ 63 ] The Applicant expresses concern about memory loss and her ability to recall the details of the date of the offence. She worries that this will have some impact on her evidence if she testifies. She indicated that her memory is “fuzzy” since the incident was so long ago, although she does have a recollection of it. Without knowing the specifics of how Ms.

McDevitt’s memory has been impacted, the Court views this as the normal inferred prejudice that arises for every accused whose trial is delayed. [ 64 ] It is important to note that Counsel for the Applicant never alerted the Crown or the Court to any specific prejudice or concern due to delay prior to the Crown’s request for an adjournment on July 26, 2011. Even on that date, other than referring to increased anxiety, there was no mention of the specific prejudice being experienced by Ms. McDevitt as presented on this Application.

Result [ 65 ] In this case the Defendant had to wait 16.4 months (492 days) for her trial. Of this time, 13.5 months (404 days) is as a result of systemic or Crown delay. This is 3.5 months beyond the upper end of the guideline. The Applicant has also shown that she suffered actual prejudice because of delay. Even without the specific prejudice experienced by Ms.

McDevitt being taken into account, the Court finds that the delay in this case was unreasonable and far in excess of the acceptable guidelines. [ 66 ] Taking into consideration the real as well as inferred prejudice experienced by the Applicant and balancing that against the important societal interest in having this drinking and driving offence tried on the merits, I am of the view that the delay in this case is unconstitutional. In all of the circumstances, I am persuaded that

section 11(

b) has been infringed and that these charges should be stayed. Released on December 12, 2011 Signed: “Justice S.C. MacLean”