R. v. Boss, 2016 ONCJ 68

ONTARIO COURT OF JUSTICE DATE: February 4, 2016 COURT FILE No.: Central East Region (Oshawa) CITATION: R. v. Boss , 2016 ONCJ 68 BETWEEN: HER MAJESTY THE QUEEN — AND — CODEY BOSS Before Justice F. Javed Heard on October 22, November 13, 2015, January 14, 2016 Reasons for Judgment released on February 4, 2016 K. Kennedy .............................................................................................. counsel for the Crown E. Chan ........................................................................ counsel for the defendant Codey Boss F. JAVED J.: I.

Introduction [ 1 ] On June 4, 2014, the Applicant, Codey Boss was charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit and impaired operation of a motor vehicle contrary to s.253(1) (

b) and s.253(1)(

a) of the Criminal Code . [ 2 ] His trial commenced before me on October 22, 2015. The live issue before the court was identification. The Crown called two civilians and two police witnesses. On January 14, 2016, the trial completed with the parties making submissions on the merits but also another issue which had arisen in the interim. Mr. Boss alleges that his constitutional right to have a trial within a reasonable period of time as guaranteed by s.11(

b) of the Charter of Rights and Freedoms ( Charter ) has been infringed. He seeks a remedy of a stay of proceedings under s.24(1) of the Charter. In any event, he submits, the Crown hasn’t proven identification to the requisite standard. [ 3 ] The total delay in this matter is approximately 18.7 months. Much of the delay was occasioned by two Crown adjournments due to the illness of witnesses. The parties disagree as to the appropriate calculation for institutional delay. I have arrived at the conclusion that the appropriate amount of institutional delay is 11.5 months, although could be as high as 12.5 months.

For reasons that I will expand on below, this has resulted in a breach of Mr. Boss’s s.11(

b) rights. There is evidence of actual prejudice. Accordingly, a stay of proceedings under s.24(1) of the Charter as a minimum remedy, is warranted. II. Chronology [ 4 ] Given the dispute about the calculation of the unexplained delay, I propose to set out the relevant events in chronological format to inform the discussion that will follow.

Date EventJune 14, 2014 Offence dateJune 15, 2014 Applicant released on a promise to appearJune 24, 2014 Applicant retains law firm of Aitken RobertsonJune 30, 2014 Information swornJuly 4, 2014 First appearance. Disclosure received. Matter adjourned to July 24, 2014.July 24, 2014 Second appearance. Crown pre-trial held. Trial date of one day scheduledfor April 14, 2015.August 18, 2014 Counsel’s first available date to conduct the trialApril 14, 2015 First trial date. Crown adjournment due to officer illness. Adjournment toOctober 22, 2015 for trial.April 27, 2015 First date offered by Mr.

Chan to proceed with trial but not available tothe court.June 8, 2015 First date offered by the court to proceed with the trial but not availableto Mr. ChanOctober 22, 2015 Second trial date. Adjourned to November 13, 2015 for continuation oftrial.November 13, 2015Crown adjournment due to illness of witness in the middle of evidence.January 14, 2016 Continuation and completion of trial. Total delay: 563 days or 18.7 months (from date when informationsworn) III. Analysis [5] In R.v. Morin, (SCC), [1992] 1 S.C.R. 771, the Supreme Court of Canada developed the analytical framework toconsider on a s.11(

b) application. They are (1) the length of the delay, (2) waiver of time periods, (3) the reasons for the delay and (4)prejudice. There is no issue that the overall delay in this case is of sufficient length to warrant inquiry and it is not suggested that therehas been any waiver of time periods. The determination of this application therefore depends on the reasons for the delay and whetherand to what extent there has been prejudice.

(1) Reasons for the Delay [6] In Morin, supra, the Supreme Court identified a list of relevant variables to consider when assessing the reasons for the delay.They include: (

a) the inherent time requirements of the case; (

b) actions of the accused; (

c) actions of the Crown; (

d) limits oninstitutional resources and (

e) any other reasons for the delay. [7] The parties agree that the period between June 14, 2014, when the Applicant was charged and July 24, 2014, when he set thefirst trial date, is properly characterized as part of the inherent time requirements of the case and therefore neutral time for the purposesof s. 11(b). The parties differ on when the parties would have been ready to realistically commence the trial. Mr. Chan submits that Mr.Aitken from his law firm clearly stated his availability as early as August 18, 2014. Ms.

Kennedy submits that at least a period of onemonth is required to allow both parties to prepare. I agree with Ms. Kennedy however not much will turn on this, as the difference is oneweek. In accordance with the dicta in R. v. Lahiry (2011), 2011 ONSC 6780 , 109 O.R. (3d) 187 (S.C.J.) and R. v. Tran (2012),2012 ONCA 18 , 288 C.C.C. (3d) 177 (Ont. C.A.), some additional time should be added to the inherent time requirements. I amsatisfied that Mr. Chan’s law firm would have been in a position to conduct the trial within a month of setting the date.

There was noCharter application filed and the case was straightforward. Thus, the period between July 24, 2014 and August 24, 2014, a period ofapproximately one month, is also neutral. [8] The parties also agree that the time between when the parties were ready for trial and the scheduled trial date of April 14, 2015, aperiod of approximately 7.8 months is institutional delay. Further, there is no dispute that the time when the trial date started on October22, 2015 to the continuation date of November 13, 2015, a period of 22 days is also institutional delay.

Considering both periods, thiswould bring the institutional delay to approximately 8.5 months.

(

a) Positions of the Parties on Attribution of Delay [9] The parties disagree on the attribution of delay between the periods of the first and second trial dates - April 14, 2015 to October22, 2015, a period of 6.3 months and the period occasioned by the second Crown adjournment being November 13, 2015 to January 14,2016, a further period of 2 months. [10] Ms. Kennedy submits that this additional period of approximately 8.3 months should be neutral in its calculation as it wasoccasioned by illness of witnesses and the unavailability of Mr. Chan.

She argues that total period of institutional delay is 8 months 11days and can be adequately explained. Further, this period is within the Morin guidelines and thus not unreasonable. [11] Mr. Chan submits that only some of the above 8.3 months should be neutral in its consideration and instead the overall delayattributed to the Crown and institutional factors is 14 months, 17 days. In submissions, this amount was tempered somewhat, bringing itcloser to 12 months. (

b) Illness of Witnesses [12] The attribution of the disputed 8.3 months requires a closer examination of the circumstances underlying the two Crownadjournments and to some extent, Mr. Chan’s availability. One issue will inform the other especially if the period between the first andsecond trial date was reasonable. [13] Jurisprudence in Ontario has established that unavailability of a witness due to illness is ordinarily characterized as neutral delay.Courts have stated that illness is often unexpected and thus the delay caused by it is simply forms part of the inherent time requirementsof a case. See R. v.

MacDougall, [1988] S.C.J. No. 74 (S.C.C.); R. v. Gallant, (SCC), [1998] S.C.J. No. 73 (S.C.C.); R.v. Hoffner, [2005] O.J. No. 3814 (Ont. C.A.); R. v. A.J.W. 2009 ONCA 661 , [2009] O.J. No. 3814 (Ont. C.A.). [14] However, Rosenberg J.A. in W.(A.J.) qualified the above principle with the following at paragraph 35: As Hill J. said in R. v. Hoffner, [2005] O.J. No. 3862, (Ont. S.C.), at para. 41: "Such a contingency, whileunfortunate and unexpected, is nevertheless an inherent feature of the litigation process.

In turn, therefore, reasonable delay to a new trialdate is prima facie considered neutral." Hill J. went on to make the important point that not all the ensuing delay is necessarily neutral. Ifthe time to the next trial date is itself unreasonable, some portion of the delay is properly considered institutional delay. (emphasisadded) I begin by assessing the reasonableness of the period between the two trial dates. This requires an examination of the reasons for thedelay and what effect, if any, institutional factors had on this period. (

c) Limits on Institutional Resources (

i) The first Crown adjournment [15] When a scheduled trial does not commence or must be rescheduled, the authorities hold that the case must be given priority in thesystem and that the delays resulting from rescheduling the trial date will generally be treated as institutional or as part of the inherenttime requirements or a combination of both depending on the circumstances of the case. See R. v. Godin, 2009 SCC 26 , [2009]2 S.C.R. 3, W.(A.J.), supra; R. v. Brace 2010 ONCA 689 , [2010] O.J. No. 4474, 261 (C.A.), at paras. 14-16. As noted above,the reasonableness of the period between the trial dates must be assessed to determine how this delay is to be treated.

[ 16 ] The Crown sought an adjournment of the trial as an officer was ill and required an emergency procedure. Mr. Chan was notified of this two days before the scheduled trial. The trial did not commence and a new trial date was scheduled. The delay between the first and second trial date (April 14, 2015 – October 22, 2015) was 191 days or 6.3 months. In my view, this comes perilously close if not exceeding, what should be characterized as a “reasonable” amount of time for a second trial date.

I say this because the initial period between the setting of the trial and the trial date was already hovering at 8 months. I’m inclined to view this 6.3 months as unreasonable because the record before me establishes that Mr. Chan was ready to proceed with a full day trial as early as April 27, 2015, some two weeks after the first trial date was adjourned and there is no explanation as to why the trial didn’t commence. [ 17 ] There was no evidence lead before me that the officer who was ill would not have been available in two weeks.

Leaving this aside, the record is unclear as to why the trial did not commence at all on April 14, 2015 with the evidence of other witnesses. This wasn’t a case where the matter was brought forward for an adjournment motion, which would have relieved the witnesses from attending on the trial date. The adjournment was on the trial date. This may have been because the Crown itself discovered late that the officer was unavailable but it doesn’t explain why the Crown (not Ms. Kennedy) wasn’t ready to proceed. I can reasonably infer that all Crown witnesses would have been subpoenaed.

This was not a one witness case but rather hinged on the evidence of two civilian witnesses who ultimately did testify on October 22, 2015 – and testified before the police witnesses. On April 14 2015, the record reveals that Mr. Chan was ready to proceed. For some reason, the Crown wasn’t and the record establishes that nothing was done to neutralize the delay that would be inevitable with an adjournment by starting the trial with other witnesses who were available. This is not to say that in all cases, the Crown must neutralize this delay but on this record, this was unexplained.

There may be cases where the order of witnesses is important to the presentation of the evidence but this didn’t appear to be such a case. Incidentally, if the trial had started with other witnesses in April 2015, it wouldn’t have finished and a brief adjournment would have been required to complete the evidence of the ill officer. However, I very much doubt that the continuation date would have pushed this case into s.11(

b) territory. In the circumstances, I find that despite the illness, the period of 6.3 months was unreasonable. I must therefore assess how much of it should be institutional. This leads me to the related issue involving the

schedule of defence counsel. (ii) The

schedule of defence counsel [ 18 ] In Godin , supra, Cromwell J. writing for the Court stated that unavailability of defence counsel in situations such as the case before it, should not be characterized as waiver or defence delay. He stated: Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry - efforts which were ignored - suggests that he wished to proceed expeditiously.

I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable." [ 19 ] Ms. Kennedy acknowledges the soundness of the Godin principles but instead emphasizes the dicta of Code J. in Lahiry and the Ontario Court of Appeal in W.(A.J.) in submitting that the periods of time during which Mr.

Chan was unavailable should be counted as neutral time. [ 20 ] Godin was cited by the Court of Appeal in W.(A.J.) and simply means that whether the unavailability of defence counsel will count as neutral delay will depend on the circumstances of the individual case. As noted above, the trial didn’t commence due to the Crown requesting an adjournment as an officer was ill. The date selected by the parties with the assistance of the trial coordinator was October 22, 2015, some 6.3 months later. The first available date offered to Mr. Chan was June 8, 2015 but he was not available.

He was also not available on: June 25, 26, August 17, September 14, 16 and October 19, 2015. The parties agreed that the matter was going to take a full day. The court was thus available to accommodate Mr. Boss’s matter on June 8, 2015 but Mr. Chan wasn’t. However, this ignores the fact that Mr. Chan was available for trial on many dates before June 8, 2015. They were: April 27, May 6, 7, 20, 21, 26, 27, June 4 and 5, 2015. He was also available on several dates between June 8 and October 22, 2015. [ 21 ] In my view, to characterize this entire period of 6.3 months as neutral delay because Mr.

Chan was not available is incorrect for two reasons. First, it ignores his availability as mentioned above. Ms. Kennedy did not resist the position that Mr. Chan would have been ready for trial in two weeks after the first adjournment. The time period for delay due to the limitation of institutional resources starts to run when the parties are ready for trial but cannot be accommodated by the system. Some of this 6.3 months should count as institutional as the court wasn’t ready to accommodate the Applicant’s trial while Mr. Chan was.

While there’s no precise formula for doing so, a cautious approach would be to consider the period from April 14, 2015 to June 8, 2015, the earliest available time to the court, as institutional. This would amount to 55 days or approximately 2 months. Mr. Chan submits half of the 6.3 months or 3 months should be institutional but I decline to do so as one can expect some delay in rescheduling a trial. I will treat the balance of 136 days or approximately 4.3 months as neutral or inherent delay.

[22] Given that the initial reason for the delay was itself unreasonable, the burden is on the state to show that the system was availableto accommodate the trial. See Morin at p.788; W.(A.J.) at para 34 per Rosenberg J.A. In my view, the same approach is warranted in thiscase. A period of 55 days, considering the first available date when the court was ready to accomodate the trial is entirely reasonable asinstitutional delay. [23] Second, on October 22, 2015, Mr. Boss’s matter was scheduled to start in courtroom 404 commencing at 9:30 a.m. marked for afull day.

The affidavit of Crown counsel, David Slessor, filed by Ms. Kennedy reveals that the matter was traversed into courtroom 403as the two courtrooms had been combined. Importantly, this was known to the Crown as of September 2, 2015. On that date, the trialcoordinator made a decision to combine both courtrooms on October 22, 2015 in order to make a judge available to preside over anunrelated matter where the defendant was in custody. The in custody matter was set on August 10, 2015 and was scheduled for threedays including October 22, 2015. The matter had been prioritized by the Crown (not Ms. Kennedy).

The effect of this is that Mr. Boss’smatter was placed on a docket with three other matters, one of which was on its third trial date. [24] Mr. Boss’s matter was eventually traversed into my courtroom where Mr. Chan was tending to another matter. He does notdispute that he was occupied until 10:45 a.m. receiving judgment. When a decision was made to traverse Mr. Boss’s matter into mycourt, the trial started at noon, ending at 4:00 p.m. The examination in chief of a civilian witness, Cheryl Balson had been completed. [25] The effect of this is that had Mr.

Boss’s matter stayed in courtroom 403, it is highly unlikely it would have been reached in anyevent resulting in further delay but thankfully for him that didn’t happen. The fact that Mr. Chan was not available until 10:45 a.m. is ofno moment because a court was not available to start his trial regardless. [26] I do not attribute the delay in starting the trial late to the actions of the Crown, as scheduling criminal trials is often challengingand dependent on many variables. Giving an in custody matter priority is an entirely appropriate decision by the Crown.

While I cannotcompletely fault the Crown for this, I also can’t fault the actions of the Applicant or Mr. Chan. As noted above, the burden is on the stateto show the system could accommodate his trial on October 22, 2015 and that burden wasn’t met in this case. I’ve taken a cautiousapproach in calculating the institutional delay and apportioned only 55 days (April 14 – June 8, 2015) as such. This brings theinstitutional delay to a total of 10.5 months. (iii) The second Crown adjournment [27] A further delay was occasioned by a Crown adjournment on November 13, 2015, when Ms.

Balson couldn’t attend for her cross-examination as she too, was ill. The Crown learned of this on the continuation date and not before. This resulted in another adjournmentto January 14, 2016, a period of 61 days or 2 months. Ms. Kennedy submits that this too should be neutral in its attribution. Mr. Chansubmits only some of it should be neutral. I agree with Mr. Chan. [28] Again, the issue is whether this period itself is unreasonable.

In the circumstances of this case, I find that it too is unreasonable.When a case does not finish and a continuation date must be obtained to complete the trial there is binding appellate authority thatemergency measures must be undertaken to salvage cases at risk. See R. v. M.(R.) (2003) (ON CA), 178 O.A.C. 243(Ont.C.

A) per MacPherson J.A. This was a case at risk as by this time, the overall delay was hovering at 15 months – well beyond theinstitutional guidelines. [29] While the adjournment was caused again by illness, I cannot ignore the effect of it on the trial process and thus the interestsprotected by s.11(

b) of the Charter. Ms. Balson had testified in chief and was yet to be cross-examined when she became unavailable.There is no evidence before me about any emergency measures taken to canvass any earlier dates before January 14, 2016 when clearlythe need to complete her evidence was pressing. Mr. Chan did not contribute to any unreasonable delay – even when Ms. Balson becameunavailable. On November 13, 2015, when he learned that she was not available, he neutralized any prejudice (and delay) by not seekingan adjournment of the trial to complete her evidence.

Instead he took the very reasonable position of agreeing to start with anotherwitness and returning to the cross-examination of Ms. Balson when she was available. In a case which hinged on the identificationevidence of civilian witnesses, this approach could arguably have prejudiced his client. Instead, the trial forged ahead. [20] I cannot attribute this further delay to the actions of the Crown but there was an institutional consequence.

When the partiesattended at the trial coordinator to obtain a half-day to continue the trial, they were advised that the court was not available betweenNovember 16, 2015 and January 7, 2016. The first available date offered to the parties was January 7, 2016, which was unavailable tothe Crown. Not much turns on this one-week period as it’s negligible in the overall calculation. The court was not ready to accommodate

Mr. Boss until January 7, 2016 – a period of 55 days. I harken back to the comments of the Court of Appeal in W.(A.J.), supra, that theevidentiary burden is on the state to show that the system was able to accommodate his trial if the initial reason for the delay wasinstitutional. Here, Ms. Kennedy quite appropriately conceded that the period from October 22 to November 13, 2015 was institutional.On November 13, 2015 when Ms. Balson didn’t attend, the proverbial s.11(

b) clock was ticking. In my view, some, if not all, of this 55day period must be considered institutional especially because this was a continuation of a second trial date where a witness was to becross-examined. In the unique circumstances of this case, the delay of 55 days was unreasonable and I would treat at least half of it, orone month, as institutional delay. (iv) Conclusion on attribution of delay [21] When this period factors into the calculus, I find that the total institutional delay is closer to 11.5 months. This is a cautiouscalculation and likely could be closer to 12.5 months.

In Morin, supra, it was held that the appropriate guideline for institutional delay atthis level of court was 8 to 10 months. The application of these guidelines will be influenced by the absence or presence of actualprejudice; that is, additional prejudice beyond that inherent in any delay. See R. v. Tran, 2012 ONCA 18. Thus, even without consideringthe 2 month delay occasioned by the unavailability of Ms. Balson, the period of 10.5 months alone warrants close scrutiny.

(2) Prejudice [22] In assessing this factor, there is a difference between prejudice arising from merely being charged with a criminal offence andprejudice occasioned by the delay. See R. v. Quereshi, (ON CA), [2004] O.J. No. 4711 (C.A.); R. v. Kovacs-Tatar, (ON CA), [2004] O.J. No. 4756 at para 32. The right to security of the person guaranteed under s.11(

b) of theCharter seeks to minimize “the anxiety, concern and stigma of exposure to criminal proceedings” (see Morin, supra at para. 28). In R. v.Silveira, [1998] O.J. No. 1622 Hill J. explained at p. 53 that '[t]he shame of disclosure to family, the expense of defending criminalcharges, and the like, arise from the laying of the criminal charge itself and not from delay to trial'. He accepted, however, that the delayto trial beyond the guidelines prolongs an accused's shame and increases his or her anxiety.

Thus, what was initially prejudice from beingcharged may become prejudice caused by institutional delay due to a delay beyond the guidelines. [23] In R.v . McDevitt, 2011 ONCJ 773 , [2011] O.J. No. 5948, Justice MacLean from this jurisdiction, undertook anexhaustive review of the law of prejudice and commented that proof of significant actual prejudice will inevitably lead to stricteradherence to the [Morin] guidelines. I agree. See also R. v. K.G., 2009 ONCA 131 (Ont.C.A.); R. v. Nadarajah, 2009 ONCA 118 (Ont.C.A.) [24] Mr. Boss swore an affidavit asserting prejudice and was cross-examined by Ms. Kennedy.

He is 25 years old and has no criminalrecord. In September 2014, some three months after being charged, he enrolled in a three-year computer programming course at DurhamCollege. In April 2015, he started working as a dishwasher at a pub earning $11.00 per hour and volunteering at the same time as anoffice administrator at Durham College. This turned into paid employment at the rate of $12.00 per hour in November 2015. [25] He testified that as a result of the criminal charges he is stressed about losing his driver’s license and incurring a criminal record.

He added that he had to skip his classes on two occasions to attend for his trial dates. In April 2015, he was taking two classes. One classhad a lecture and lab format and he missed the lecture format to attend for his trial which didn’t proceed as scheduled. He was able tomake up the lab class but the missed lecture impacted his grades as he got a poor grade on his lab work. It was his lowest grade for thatclass. Despite this, he passed all classes. In October 2015, when he attended court a second time for his new trial date, he missed anexam review as his mid-term examinations were scheduled for November.

He didn’t have to miss any exams. [26] He explained that his long-term common law partner, Kimberly Moreau, was interviewed by the police and subpoenaed by theCrown as a witness. I learned in submissions that she was the registered owner of the car allegedly driven by Mr. Boss. She attendedcourt with him on all three occasions. In October 2014, some three months after Mr. Boss was charged, the couple got married. On herthird attendance in court, (November 13, 2015), she was told by the Crown that she was no longer required as a Crown witness.

I inferfrom this that she was still under subpoena on April 14, 2015 and October 22, 2015. He added that her being subpoenaed has addedstress to their relationship and since September 2015, she has been seeing a psychologist for one on one counseling. The couple had totake out a consolidated loan to pay his legal fees which included paying for the additional dates and the s.11(

b) motion. [27] Ms. Kennedy submits that the evidence of prejudice relating to his education, stress and financial burden emanates from beingcharged with the offences and not the delay. It is insufficient to warrant a breach of his rights. With respect, I disagree, especially as itrelates to the evidence of stress. Increased stress and additional legal fees are well recognized as being associated with delays resultingfrom a trial not being reached. See R. v. McMunn (2008), 2008 ONCA 520 , 233 C.C.C. (3d) 454 (Ont. C.A.); McDevitt, supra.

I am prepared to place some additional weight to the factor of increased fees as this case was not complex. Unlike many other drinkingand driving cases, this case did not involve a Charter application. The issue was straightforward: identification of the driver. Despite this,the couple had to take out a loan to fund the delayed proceedings. The additional expense of the s.11(

b) motion was completelyunforeseen. [28] I cannot accept the position that any evidence of additional stress to Mr. Boss emanates from the charge itself. Ms. Kennedy, in acareful submission argued the fact that Mr. Boss’s spouse was involved doesn’t mean too much as her involvement stemmed from Mr.Boss being charged and not the delay. I agree, but only in part. The involvement of Kimberly Boss is unusual. It is somewhat ironic thatthe couple had to take out a loan to help fund Mr. Boss’s defence while at the same time being compelled to testify against him at histrial.

While it’s unclear when she was subpoenaed to testify, she carried this burden with her until November 13, 2015 – two monthsbefore she started counseling and some 17 months after Mr. Boss was charged. In addition to taking three days off as vacation to attendcourt – as a Crown witness, it is unclear why it took so long to advise her that she wasn’t needed as a witness. [29] I would tend to agree with Ms. Kennedy that any stress would have been inherent if in fact Mrs. Boss was an integral part of theprosecution but that’s not the case. Here, she ultimately did not testify despite being subpoenaed.

It’s noteworthy that at the time whenMr. Boss was charged, her legal status as a common law partner meant that she was competent and compellable for the prosecution, butthat changed when they got married some three months later. There is no evidence that this was deliberately done for an improperpurpose. Given the history of the matter, it’s only reasonable to infer that shortly after the trial date was set, she would have beensubpoenaed but in the interim, her availability – legally speaking – as a witness changed.

As a spouse (no longer common law), shewould not be competent or compellable for the prosecution but this too changed on July 23, 2015 when the spousal incompetency rule ins.4 of the Canada Evidence Act was repealed by Parliament. I was advised that neither the police nor the Crown knew of their maritalstatus. Mr. Chan doesn’t take issue with this and nor do I. The point is that for some period of time, when she was arguably not legallycompetent to testify, she was still under subpoena.

The spousal incompetency rule had been firmly established in law before it wasrepealed in 2015 and spouses could only testify against their spouses in very limited circumstances (where the charge involved thespouse, or the spouse’s liberty or health of the person). See R. v. Nguyen, 2015 ONCA 278 , [2015] O.J. No. 2098 (Ont. C.A.)None of the circumstances were present in this case. One of the policy reasons behind the rule included forcing a spouse to testifyagainst one’s spouse would disrupt marital harmony. Here, it’s unfortunate that their marital status (and Mrs.

Boss’s need to testify) wasnot canvassed earlier. [30] It is even more unfortunate that the circumstances resulted in Mrs. Boss seeking psychological counseling. While the recordreveals that the criminal charges may not have been the only reason for the marital discord, the timing of her counseling is important.She started counseling in September 2015, some 15 months after her husband was charged. Had her husband’s trial completed in April2015 or shortly thereafter, perhaps things would have turned out differently but one will never know.

I can reasonably infer that thedelayed proceedings were a source of the discord if not the main source. If she was seeing a psychologist before the charges were laid,the circumstances may very well be different but that’s not the case. I accept Mr. Boss’s evidence that she was not seeing a psychologistbefore he was charged and “most” of the arguments they had “had to do with this case”.

He was privy to her “homework” assigned byher psychologist, which related to their various issues. [31] In K.G. supra, the Ontario Court of Appeal in characterizing the prejudice that flowed to an elderly accused facing allegations ofhistorical sexual offences stated the following: [39] Clearly there is evidence that the fact of these charges has caused stress to the respondent and has been a source of friction betweenhim and his wife, a fact true of anyone facing serious criminal charges. Institutional delay does not cause this stress, it can only at bestprolong or exacerbate it.

Here, the circumstances are different as the confluence of factors meant that any prejudice that flowed from being charged with adrinking and driving offence not only impacted Mr. Boss but also his wife. The delay in this case actually caused the stress as opposed toprolonging it. In any case, the weight of criminal charges will impact family members in different ways but the prejudice analysis mustfocus on the Applicant. To be clear, I am not concluding that in all cases where there is evidence of stress to family members, it willalways impute stress to an Applicant. Each case must be assessed on its own.

Given the very unique circumstances of this case, it wouldbe artificial to conclude that any prejudice derived from stress only accrued to Mrs. Boss and not her husband. [31] In Godin, supra, the Supreme Court commented that the entire period of the delay, that is the time period from the charge to thecompletion of the trial, is properly considered in assessing inferred prejudice. While the period of 18.7 months may lead to thisconclusion as well, here there is evidence of actual prejudice as described above. Moreover, it does not appear that Mr. Boss could havedone anything to mitigate this prejudice.

I find that both he and his spouse were prejudiced by the delayed proceedings above andbeyond what could be reasonably expected.

(3) Balancing [30] This case was exceptional and took many unfortunate twists and turns in arriving at the finish line. While I cannot fault theCrown for the many twists, I simply cannot turn a blind eye to the 11.5 months of institutional delay. I am mindful of the seriousness ofdrinking and driving offences (Lahiry, supra at para. 89) but when I carefully balance Mr. Boss’s interest in having a trial within areasonable time with the societal interest in having a trial on the merits, I conclude that Mr. Boss’s s.11(

b) rights have been infringed.This was not a complex case and Mr. Boss did everything he could to get his matter heard in a timely way. While the period of 11.5months doesn’t miss the mark by much and in other circumstances may not result in a remedy, the evidence of actual prejudice in thiscase clearly tips the scales in his favor. In R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, Lamer J. writing for the SupremeCourt held that the minimum remedy for a violation of s.11(

b) is a stay of proceedings. Despite being a “drastic remedy”, on balance, inlight of all the factors in this case, it is warranted. III. Conclusion [31] The application under s.11(

b) of the Charter is granted. The proceedings are stayed pursuant to s.24(1) of the Charter. [32] Given that my conclusion on the constitutional infringement is dispositive of the case, I need not consider the arguments raisedby the parties on the substantive issues. I would like to thank both counsel for their helpful material and focused submissions. Released: February 4, 2016 Signed: “Justice F. Javed”