R. v. Dvorak, 2016 ONCJ 420

CITATION: R. v. Dvorak , 2016 ONCJ 420 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JACUB DVORAK Before Justice Peter Harris REASONS FOR JUDGMENT on s. 11(

b) Motion delivered July 7, 2016 Mr. T. Goddard…………………….......................................................................for the Crown Mr. J. Rosenthal ……………………………………...........................................for the Defence Harris, J.: Introduction [ 1 ] Jacub Dvorak was charged with “impaired operation,” “excess alcohol,” and “fail to remain” under the Criminal Code , on the 27 th day of September, 2014. Crown counsel has conceded that there is no case to meet on the “fail to remain” charge. [ 2 ] The Defendant/Applicant applies under

section 11(

b) and s. 24(1) of the Charter for a stay of proceedings on the grounds that his right to be tried within a reasonable period of time has been violated. As a result of inadequate notice of this application, counsel agreed that the s. 11(

b) motion would follow the trial evidence. This application was heard on June 22, 2016 and this is my ruling. [ 3 ] There are four issues to be determined on this application.

(1) What is the neutral period of delay?

(2) What delay is attributable to the defence?

(3) What is the institutional / Crown delay in this case?

(4) After balancing all the delay considerations, was the institutional / Crown delay unreasonable and did it constitute a breach of the Defendant’s s. 11(

b) right under the Charter ? The Evidence [ 4 ] On September 27, 2014 at about 5:30 pm, there was a minor rear-end collision in bumper –to-bumper traffic on the 401 Highway westbound at Dufferin Street in Toronto. Mr. Dvorak was driving the car that collided with the vehicle in front and after exchanging documents with the other driver, he waited at the scene for the police for 45 minutes to one hour, then left his documents with the other driver and drove to his home address in Toronto.

As a result of the collision and some indicia of impairment at the scene and upon being stopped near his residence (eyes were bloodshot and there was a heavy odour of alcohol on his breath) the arresting officer, P.C. Chan, advised him he was under arrest for impaired driving. Mr. Dvorak was then transported to a local breath testing facility where he provided breath samples that were analyzed resulting in blood alcohol readings of over 80 mgs. percent.

On March 24, 2016, I ruled that the arresting officer had reasonable grounds to arrest for impaired operation and that there had been no violation of the Defendant’s

section 8, 9 Charter rights. Case History [ 5 ] The defendant in this case was arrested September 27, 2014 and the information was sworn October 17, 2014. On October 7, 2014 defence counsel wrote to the Crown’s office at Old City Hall, Toronto requesting disclosure, including “the breath room video” and the “cell video.” On the first appearance, October 27, 2014, disclosure was provided to counsel and the case was adjourned for a Crown pre-trial.

That same day, October 27, 2014, defence counsel advised the Crown in writing that the booking and breath room video that was received was blank -“there is nothing on it” and requested a replacement video DVD. While awaiting this disclosure, new counsel, Mr. Rosenthal, took carriage of the matter as the previous counsel had been appointed to the Bench. On November 27, 2014, the

defence wrote to the Crown’s office and made another “formal request for full and complete disclosure,” the breath and booking videonot having been received to date. On November 28, 2014, Ms. Linda Effah, Case Management Coordinator for the Crown’s officereplied in writing, stating that the breath/booking video had been provided in court to counsel on October 27, 2014 and there was a” feeof $25 for a second copy of disclosure” and an application was required to be “filled out in the Crown’s office.” [6] On November 28, 2014 defence counsel wrote to Ms.

Effah, enclosing the earlier correspondence (indicating that the video DVDwas blank) and requested the disclosure for the next court date December 1, 2014. On December 1, counsel attended court for thedefendant and was advised that the DVD of the booking/breath video that the Crown had received did not work either and that theCrown’s office had re-ordered it. The case was then adjourned to December 22 for disclosure. On December 2, Mr.

Rosenthal wrote tothe Crown’s office and advised that the police station videos had not been received and that, “My client is anxious to move this matteralong and I’m hopeful disclosure will be available before the next court date.” On December 22, 2014, counsel attended court for thedefendant and was advised by Crown counsel (the same Crown that appeared on the matter December 1, 2014) that “the video does notwork” that the Crown’s office had received and that the Crown seized of the matter had “ordered a second copy”...

Crown counsel then requested a further adjournment: “So I’d suggest a brief remand for that purpose. Maybe three weeks or so? The 12th or 13th of January?” The case was then adjourned to January 12, 2015. On January 12, 2015, in court, Crown counsel advised that the Crown seized of thematter re-ordered the video “at the end of December. We don’t seem to have it yet. So my suggestion would be if we could put thematter over briefly. I’ll have - maybe two, three weeks or so.” The case was then adjourned to January 26, 2015. [7] On January 13, 2015, Mr.

Rosenthal wrote to the Crown stating that a pre-trial cannot be conducted without these materials.“Unfortunately the failure to provide this important disclosure is freezing this case in its tracks.” “No meaningful pre-trial can beconducted without these materials.” I am hopeful the outstanding disclosure can be provided before the next court date.” On January 26,2015, some disclosure was provided and the case was adjourned to February 9, 2015. On February 6, 2015, Mr.

Rosenthal again wrote tothe Crown Attorney’s Office advising that the new DVD provided “does not contain any footage of my client.” “There is nothing on theDVD.” Once again he reiterates his position that “the failure to provide this this disclosure is freezing this case in its tracks.” On theFebruary 9, 2015 court appearance, counsel for the defendant states that the new DVD received “about three weeks past” also doesn’t work.” “There is nothing on it.” Crown counsel states “Crown is proposing a couple of weeks.” On the return date February 23rd 2015,the breath and booking video is turned over to the defence and the matter is adjourned to March 16, to review the disclosure andschedule a Crown pre-trial.

On March 16, 2015, counsel for the defendant states that a pre-trial was held with the Crown on March 10and counsel requests that the matter be adjourned one week to March 23, 2015 to obtain instructions. On March 23, the case wasremanded further week “to receive instructions from his client.” [8] On March 30, 2015 the defence requested a further week to allow Mr. Dvorak to “consider his options.” On April 7, 2015 thedefence requested a further week to obtain instructions. On April 14, 2015 the matter is adjourned to April 20 so defence counsel canspeak to the matter in person. On April 20, Mr.

Rosenthal attends court for the defendant and requests that the case be adjourned to April21 to set a trial date. On April 21, the case was adjourned for a Crown pre-trial May 11. On May 11 the case was adjourned to set ajudicial pre-trial. On May 19 the case was remanded to May 29 for a judicial pre-trial. On May 29, 2015, two days were set aside fortrial, March 9th and 10th, 2016. Crown counsel stated that: “it was the first date offered by the trial coordinator.” Defence counselindicated that Mr.

Rosenthal was available for trial on the following dates: June 3, 4; July 21, 23; August 26, 27; September 16, 17, 21,22, 28; October 13, 16, 21, 22, 23, 26; November 2, 3,4,5,6, 30; December 1, 8, 9, 10, 11, 14, 15, 16, 18, 22, 23; January 18, 19, 21, 22;February 1, 2, 3, 4, 5, 8, 9, 15, 16, 19, 22, 23, 24, 29. [9] I propose to conduct an attribution analysis of the specific periods that constitute the total delay period in accordance with R. v.Schertzer 2011 ONSC 3046 (Ont.C.A.). Analysis [10]

Section 11(

b) of the Charter guarantees an accused person's right to trial without unreasonable delay. The five purposes of thisright were delineated in R. v. Morin, (SCC), [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1 (SCC): The primary purpose of s. 11(

b) is the protection of the individual rights of the accused. The individual rights, which the

section seeks toprotect, are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial. The right to security of theperson is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right toliberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictivebail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available andfresh. The secondary societal interest is (1) an interest in seeing that the least fortunate of its citizens who are accused of crimes are treatedhumanely and fairly. In this respect trials held promptly enjoy the confidence of the public….

(2) There is, as well, a societal interest inlaw enforcement…. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. [11] On a s. 11(

b) application the trial court will consider the Four Morin Factors and the Five Causes of delay. The four factors to beassessed are: (1) the overall length of the delay; (2) waiver of any individual time periods; (3) the reasons for the various periods ofdelay; and (4) prejudice to the interests protected by this particular right. Determining the reasons for delay can be the most importantand also the most challenging of the four factors. This factor simply requires an objective analysis of each period of delay in order to

determine its cause. The five traditional causes of trial delay are: (1) the inherent time requirements of the case; (2) any actions of thedefence; (3) any actions of the Crown; (4) limits on institutional resources; and (5) other miscellaneous causes, [such as judicial delays].“Careful analysis of the transcripts of each date where the proceedings were delayed is critically important to this factor [determining thecause of delay]. Having objectively determined the cause of each period of delay, based on the transcripts and any other relevantevidence, this factor then assigns a weight to that period.” (See R. v.

Lahiry, 2011 ONSC 6780). Ascertaining the reasons for trial delaydoes not involve making findings of fault, as there can be good or necessary reasons for delay. [12] A

section 11(

b) analysis requires a judicial “balancing” of the length of the delay as assessed in light of the identified factors andthe interests protected by s. 11(b). “What is important is how those factors interact and what weight is to be accorded to each,”according to McLachlin J. in her concurring opinion in Morin, supra, at p. 30. Cromwell J. in R. v. Godin, 2009 SCC 26 , [2009]S.C.J.

No. 26 at para. 18, described the analysis to be undertaken: Whether delay has been unreasonable is assessed by looking at the [total] length of the delay, less any periods that have been waived bythe defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(

b) seeks toprotect. [13] The defendant bears the burden of establishing a breach of s. 11(

b) under the Charter. As has often been said, while there is nofixed limitation or mathematical formula by which to measure the reasonableness of pre-trial delay some assistance can be derived fromthe administrative guidelines articulated in Morin, supra. The permissible institutional or systemic delay in the case of a provincial courttrial is eight to ten months. As noted in R. v.

G.(C.R.), (2005), (ONCA), 77 O.R.(3d) 308 (C.A.), at 315.), the delaythat may be constitutionally acceptable may contract or expand depending on a variety of factors, particularly the prejudice experiencedby the defendant: “Further, the amount of delay that was tolerable in this case must be at the lower end of the range given the prejudiceto the respondent because of the very strict bail conditions:” R. v. G.(C.R.), para. 27. [14] According to the Court of Appeal in R. v. Thomson, 2009 ONCA 771 , paras. 9 and 10, a stay of proceedings is the onlyappropriate remedy once the s. 11(

b) threshold of “unreasonable delay” is crossed. The test for unreasonable delay is based on thelength of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay(inherent time requirements, accused’s actions, Crown’s actions, limits on institutional resources), the prejudice to the accused andfinally by balancing the interests that s. 11(

b) seeks to protect: R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26 para 18. Accordingly, the issues under consideration will be dealt with in the above-noted order. Length of the Delay [15] As noted above, the total delay to trial is approximately 17 months ― from October 17th, 2014 when the Information was swornto the trial date March 9, 2016. The overall period of delay is calculated from the date the Information was sworn until the scheduledtrial date. (See: R. v. Kalanj (SCC), (1989) 48 C.C.C. (3d) 459 (S.C.C.). A delay of this magnitude calls for an inquiry.

Waiver of Time Periods [16] There were no express waivers by the defence of any time period based on the analysis that follows. After the initial intakeperiod, the defence position on the adjournments for preliminary activities in this case took the form of: (1) acquiescence in delay toawait crucial disclosure; and (2) requests for time to obtain instructions; and (3) requests for delays for Crown and Judicial pre-trials.According to s. 11(

b) jurisprudence, the delay for necessary pre-trials is inherently neutral as these delays generally benefit both theCrown and defence. As will be noted below, delays awaiting crucial disclosure in order to make meaningful decisions in the conduct of aproceeding do not constitute waivers of delay by the defence. Finally, the approximately 5 weeks of delays when the defence adjournedthe case five times to obtain instructions (March 16, 2015 to April 21, 2015) are best attributed to the neutral category, in my view.

Theseare the types of preparatory discussions that usually precede the setting of a trial date when full disclosure is received early in theproceeding. Had the crucial breath and booking video disclosure been made available at the first appearance, these few weeks of defenceinstructions and planning would have folded into the typical 6 week neutral period for drinking/driving cases in the Ontario Court.[Appellate jurisprudence has established that a reasonable neutral period of time for such “intake” matters in this type of case should beabout 6 weeks. See, for example: R. v.

Morin, (1992) (SCC), 71 C.C.C. (3d) 1 (SCC)]. [17] The video disclosure was available on the date of arrest September 27, 2014, and only required copying. The fact that regularneutral-period discussions between the defendant and his counsel took place some five to six months after arrest does not somehowconvert these delays into waivers on the part of the defence. They are simply a function of delayed disclosure (the breath/booking video)that was not received until February 23, 2015, and that prevented any meaningful discourse with counsel until the case was fullyunderstood.

In any event, the defence adjourned the case week by week during the five weeks in question, leaving the clear impressionthat time was of the essence and that pre-trial meetings with the Crown were being conducted during that period. This is inherentlyneutral delay by any measure.

Reasons for the Delay (

a) Inherent time requirements of the case and neutral periods [18] There are two neutral or inherent delay attributions required in this case: (

i) the neutral intake period; (ii) the delay required forcounsel availability and case preparation once the date for trial was set. (

I) The Neutral Intake Period [19] One central issue in this case is the characterization of the approximately 7.5 months of delay from the date the information was sworn (October 17th, 2014) to May 29th, 2015 when all the preliminary activities had taken place and the case was set down for trial. Both counsel agree that the period that should be considered neutral intake in this case is the period from October 17th, 2014, the datethe information was sworn to December 1st, 2014.

The template for a reasonable neutral period for all intake functions for “drinking anddriving offences” is approximately six weeks according to R. v. Morin, supra. In terms of the nature and complexity of the case, onecould readily conclude that an impaired and “over 80’ case where there was one arresting officer, a civilian witness and a breath andbooking DVD ― would be the most straightforward and uncomplicated example of these type of charges, the disclosure only a matter ofcopying statements and a DVD.

As Sopinka J. observed in Morin: “Equally, the fewer the activities which are necessary and the simplerthe form each activity takes, the shorter should be the delay.” This being the case, I will assume for these purposes that a reasonable neutral period for all intake functions would be the period encompassing two remands from October 17th to December 1st, 2014, a timeframe of 6 weeks during which all of the usual intake activities had been completed, the only outstanding issue being the booking/breath room DVD.

In fact by October 7th, prior to first appearance, defence counsel had been retained and had requested disclosure, including“the breath room video.” Accordingly, I agree with counsel that a reasonable neutral period for the intake functions in this case is the period from October 17th to December 1st, 2014. (II) Counsel Readiness for Trial [20] It is noteworthy that recent case authorities do not accept that the period between the date the trial is set and the trial date isentirely institutional delay. As Simmons J.A. in R. v.

Tran 2012 ONCA 18 observed: [32] Second, parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counselrequires time to clear their

schedule so they can be available for the hearing as well as time to prepare for the hearing. These time framesare part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but thecourt is unable to accommodate them. See Morin, at pp. 791-2, 794-5, 805-806. See also Lahiry, at paras. 25-37, citing Morin, R. v.Sharma, (SCC), [1992] 1 S.C.R. 814, R. v. M.(N.N.) (ON CA), (2006), 209 C.C.C. (3d) 436 (C.A.),R. v. Schertzer 2009 ONCA 742, 255 O.A.C, R. v. Meisner (2003), 57 W.C.B. (2d) 477 (Ont. S.C.), and R. v.

Khan, 2011 ONCA 173, 2011 ONCA 173, 277 O.A.C. 165. [21] The question under consideration is: what is the appropriate attribution of delay in respect to counsel availability and trialpreparation? Systemic delay runs from the time that all parties are ready for trial. Case authorities are clear that “Institutional delay onlybegins once all parties are reasonably ready for trial and the Court cannot accommodate them”: R. v. Lahiry at 34; R. v.

Tran at 32; R. v.Stelle at 19. “The delay that counsel needs, for entirely beneficial reasons, in order to prepare the case for trial and to accommodate it ina busy practitioner’s calendar is inherently part of the trial process. It is good and necessary delay that would have occurred in any event,even if the Court had earlier available dates. It is a fiction to characterize this kind of useful delay as unwarranted or unreasonable orprejudicial:” R. v. Lahiry, supra.

Trial readiness delay is therefore composed of two constituent elements — delay for preparation andcounsel availability. [22] Often counsel state on the record their availability for trial and the time needed to prepare for trial and the court may well decideto make a case-specific determination of inherent time attributable to trial readiness. In fact in the case at bar, the defence indicated an availability for trial starting June 3rd and 4th some 5 days after the trial dates were set on May 29, 2015.

Crown counsel argues that 30days should be the trial readiness neutral period on account of the Charter applications being planned by the defence and the 30 daynotice period for Charter motions under the Ontario Rules of Court. In cases where the Crown and defence positions on trial readinessare irreconcilable, the Court must strike a reasonable balance between the conflicting positions. [23] First, Sopinka J. [in Morin] determined that in a drinking/driving case, about a month should be allocated for counsel to prepareand make themselves available for trial, after setting the trial date. Second, in R. v.

Konstantakos, 2014 ONCA 21, the Court of Appealheld ─ in regard to a matter of some complexity involving a ‘grow operation’ where there was no stipulation on the record as to trialpreparation time required ─ that a 30 day period would be a reasonable allocation: (at para. 11): Allowing a minimal amount of time to prepare for a trial of moderate complexity, including the preparation and service of an applicationunder s. s. 8 of the Charter, it is reasonable to deduct 30 days as inherent delay. [24] Third, in striking a reasonable balance between Crown and defence in matters of less complexity such as the case at bar, somecourts have held that a period of 3 weeks where there is a Charter issue to be litigated, would represent a reasonable neutral period fortrial readiness purposes: see R. v.

Duszak, [2013] O.J. No. 5015. Having regard to the Judicial Pre-trial form filed in the Respondent’sApplication Record, I note that there were multiple Charter issues contemplated for trial, a

section 8, 9 issue (reasonable grounds toarrest), a

section 7 issue (destroyed disclosure) and a s. 10(

b) application. In view of the additional Charter issues the Crown would berequired to respond to under the Rules of Court, I believe a reasonable balancing of all issues and interests would result in an allocation of

one month or 30 days to the trial readiness category of neutral or inherent delay. I note that in a similar case of drinking/driving, R. v.Ritchie 2016 ONSC 1443 , [2016] O.J. No. 1081 (S.C.J.), the Court held on appeal that: “In these circumstances the trial judgedid not err in apportioning one month for preparation.” Consequently, I will attribute 30 days prior to trial as neutrally weighted delay tobe deducted from institutional delay following the date the case was set for trial. (

b) Actions of the Accused [25] There was no waiver of trial delay on the part of the accused. The trial readiness delay as noted above is recorded as neutral inthe calculation of overall delay in accordance with R. v. Lahiry, supra. (

c) Actions of the Crown (

I) Delay Caused by Tardiness in Providing the DVD Disclosure [26] The Crown and defence both agree that after the neutral intake period that consists of the period October 17th to December 1st, 2014, the further delay of 3.5 months from December 1st, 2014 to March 16, 2015 is attributable to the Crown for failing to provide a crucial piece of disclosure (the booking/breath room DVD). The disclosure was eventually provided to defence on February 23rd, 2015,which necessarily required a further period of three weeks to review it. Consequently, the Crown delay attribution should properlyextend to March 16, 2015.

The first question to be resolved is whether the defendant was entitled to forego the setting of a trial datewhile awaiting the receipt of the DVD that recorded crucial elements of the impaired and “over 80 mgs.” charges at the police division.It is important to note that the case authorities on this issue do not require that in every case counsel must set the trial date immediatelyfollowing the typical neutral intake period for a particular type of charge.

In three recent decisions, the Ontario Court of Appeal hasemphasized the point that disclosure need not be complete before dates are set for trial or preliminary hearing. See R. v. Kovacs-Tatar(2004) (ON CA), 192 C.C.C. (3d) 91 (O.C.A.), R. v. M.(N.N.) (2006) (ON CA), 209 C.C.C. (3d)436 (O.C.A.), R. v. Schertzer 2009 ONCA 742. In R. v. M.(N.N.) Jurianz J.A. held that:: (at para. 37) “Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to thenext step or to set a date for trial.” [27] However, in R. v.

Lahiry 2011 ONSC 6780, Code J. in interpreting these leading decisions on the subject, observed that: (at para.114) It is only when the missing disclosure is truly material to “crucial steps” in the process, like election and plea, that it will justify delay atthese early stages. This is simply common sense. [28] There are at least two binding authorities that conclude that police video recordings represent crucial disclosure in these types ofproceedings.

If a picture is worth a thousand words, a moving picture has to be worth so much more in terms of critical decisions aboutwhether the matter will resolve or proceed to trial.

In a case where a booking and breath room DVD of an alleged impaired driver and hisor her experience with the Intoxilyzer is readily available and the only other record of what transpired is an after-the-fact notation on abreath analysis certificate, it would be, in my view, tantamount to professional negligence to make major decisions such as whether toproceed to trial prior to reviewing this crucial video recording. [29] The binding authorities are quite pointed in their references to late DVD disclosure. In R. v. Farry, [2010] O.J.

No. 1977 (S.C.J.),Trotter J. offered the following commentary: [11] Before addressing the issue of the appropriate order, I wish to point out that I do share the motion judge’s view about the delayinvolved in the disclosure of the DVD. This type of delay, which is caused by the police, is a common occurrence in the Ontario Courtof Justice. In our digital world, in which data is so easily shared, there is no good reason why a copy cannot be produced in a very shortperiod of time. In this case, it should have been available by the first appearance date (which was over a month following the arrest).

Meaningless appearances are routinely made in the Ontario Court of Justice while everyone waits for the police to make copies of whattranspired in the breathalyzer room. These needless appearances clog the already busy courtrooms in this province. This isunacceptable. [12] While I recognize that it is not always appropriate to wait for every last piece of disclosure to be made before setting a trial date,a recording of what takes place in the breathalyzer room can be of great value, to both the Crown and the defence.

When this type ofevidence is available for viewing, informed decisions may be made about whether the case will proceed to a trial on the merits, orwhether it might be resolved by way of a plea or withdrawal. It is important that this evidence be available at the earliest opportunity. [13] Therefore, while I have decided that the motion judge’s reasons were insufficient, he was right to isolate this aspect of the casefor consideration. In my view, delay caused for these reasons should be afforded greater weight in the s. 11(

b) calculus: see Regina v.Brown, [2005] O.J. No. 2395 (C.J.), at para. 52. [30] Additionally, Wilson J. in delivering the following reasons in a

summary conviction appeal in R. v. Godfrey [2005] O.J. No.2597 (Ont. S.C.) accepted the trial judges reasons in regard to delayed police video disclosure: 5 The learned trial judge reasons are short and are as follows:

This case raises what appears to be a recurrent problem in this jurisdiction and other jurisdictions; namely, thatuncomplicated cases, and counsel are agreed that this is an uncomplicated case, video disclosure is not routinelyprovided at or very near to the accused's first appearance in court following a charge being laid. Indeed, it appears inthis jurisdiction that the Crown insists on receiving a written request for video disclosure before a videotape is madeavailable and disclosed. I do not understand why.

I reiterate this is an uncomplicated case and there seems to be no good reason why the form of the disclosure shouldmake the slightest difference. This disclosure should have been provided on or near December 28th, 2001, theaccused's first date for appearance in court, and if not on December 28th, 2001, very close to it. If that disclosure hadbeen provided properly, then I am prepared to make the inference that counsel would have been in a position to set atrial date on February 21st when he was retained. That being the case, this matter has taken far too long to get to the first trial date. The accused's

Section 11(

b) rightshave been irreparably interfered with and, therefore, in my judgment, a stay of proceeding should issue. I want toreiterate on the record this is an apparently uncomplicated case. There may be cases where, for very good reason,video disclosure is not available on or near the accused's first appearance in court, but this does not appear to be one ofthose cases and those cases should be the exception rather than the norm. 6 The charges against the accused are stayed. [31] As well, there is a significant body of case law on the same point from the Ontario Court of Justice. In R. v.

Maxwell [2006] O.J.No. 4604 (Ont.C.J.), Lipson J. held: 21 It seems to me that if this issue was ever controversial, the time has long passed when it should continue to be so. There will beexceptionally few cases where the booking-breath room DVD does not constitute essential disclosure. In most contested drinking anddriving cases, either Crown or defence plays the DVD during the trial. Defence counsel and their clients require timely disclosure of theDVD in order to make informed choices as to how best to proceed. What is shown on the DVD can have a crucial influence on thechoice of plea or trial strategy.

What is displayed on the DVD is always relevant to a myriad of Charter and non-Charter issues. Anotherimportant aspect to be considered is that of trial management. One of the primary functions of the judicial pre-trial is to properly assessthe time requirements of any given case. The pre-trial judge and counsel factor the playing of the DVD into this estimate. Defence andCrown need to review the DVD in order to participate meaningfully in a judicial pre-trial. [32] In 2002, in R. v.

Wemer (2002) 56 W.C.B. (2d) 109 (O.C.J.) I made the following comments in a case that was once againunreasonably delayed by disclosure of a video recording in a drinking and driving case. The delay was approximately 4 months for thesole purpose of copying and delivering the video recording: It is clear to me that what is transpiring in this jurisdiction is that the police seem to be attempting to save money by not producing thevideotape, at an early moment, in the hope that somebody might enter a guilty plea, and therefore, not have to provide it.

I don't franklyknow what expense is involved with producing the videotape, but it seems to me that the police can't have it both ways. They can'tattempt to save money and at the same time argue they're not responsible for delay when it takes some extensive period of time, in thisjurisdiction, to obtain a videotape of the events in the police station ... [this] is significant evidence for both the Crown and defence ...

Itis key evidence and, in my view, should be provided at the earliest opportunity ... when delay is caused by the lack of the provision of avideotape, then that's a responsibility that inures to the Crown and has been a problem in this jurisdiction for many years ..." [33] In a striking example of “plus ça change, plus c'est la même chose,” I released a judgment in 2013 in which, the drinking/drivingcharge was stayed for reasons primarily related to interminable delays in providing disclosure of the breath room DVD.

In R. v.Dummett, 2013 ONCJ 309 , I reached the following conclusions (at para. 28): [28] I conclude that this perennial problem of delayed DVD disclosure in drinking and driving cases has now become a systemicfeature of Ontario Court litigation and in the instant case is crucial evidence that in principle should be provided before a trial date is setand accordingly, represents delay that should be attributed to the Crown. The issue seems to have become unaccountably impervious toremediation. [34] For other ’s, 11(

b) cases in which video disclosure has contributed to the trial delay see also: R. v. Meier (ONCA), [1998] O.J. No. 3498 (O.C.J.); R. v. White [2003] O.J. No. 2554 (O.C.J.); R. v. Rhambarose [2009] O.J. No. 6356 (O.C.J.); R. v.Kenworthy [2010] O.J. No. 2409 (O.C.J.); R. v. Tefera, [2010] O.J. No. 5016 (O.C.J.); R. v. Proo 2011 ONCJ 379 , [2011] O.J.No. 3343 (O.C.J.); R. v. Watt, [2014] O.J.

No. 5124 (O.C.J.). [35] There is little question that there has become a seemingly irremediable systemic failure to provide timely DVD disclosure in theToronto area in these cases. [36] As noted above, there has been a period of disclosure delay in this case of 3.5 months that is properly attributable to the Crown.What is most concerning about this disclosure delay in the instant case is that six letters were sent by the defence to the Crown datingfrom October 7, 2014 to February 6, 2015 latterly complaining that “the failure to provide this disclosure is freezing this case in itstracks.” The Crown not only appears to be powerless to remedy this Stinchcombe deficiency for almost 4 months but somehow carelesslycompounds the error at one point by demanding a fee for ‘replacement disclosure.’ (See Crown’s letter of November 28, 2014 from theCase Management Coordinator). [37] The key consideration in allocating this disclosure delay to the Crown, is the materiality of the breath/booking DVD and itsforensic significance in the defence of the impaired and “over 80” charges.

First, this is not a case of a defence strategy that was based on

needless or trivial disclosure requests designed to create delay. The defence was forthright, unwavering and relentless in their pursuit ofthis disclosure. The situation became more pressing as the delay continued: “No meaningful pre-trial can be conducted without thesematerials.” “The failure to provide this disclosure is freezing this case in its tracks.” It is clear this material was fundamental to whetherthere would be a plea or trial.

Second, the Crown never offered any explanation for the delayed disclosure… as if they were helplessbystanders. (On the February 9, 2015 court appearance counsel for the defendant states that the new DVD received “about three weekspast” also doesn’t work.” “There is nothing on it.” Crown counsel responds by saying disinterestedly: “Crown is proposing a couple ofweeks.”) Crown counsel seems to be rather indifferent to the pace of the litigation, never recognizing that the needed disclosure had beenmissing for months or taking control and promising to remedy the situation in short order.

The relaxed attitude of the Crown in my viewcontributed to the delay. (

d) Limits on Institutional Resources [38] The limits on institutional resources are well known in the Ontario Court of Justice, where even today, some twenty-six yearsafter the first Supreme Court of Canada decision on s.11 (

b) of the Charter (R. v. Askov, (SCC), [1990] 2 S.C.R. 1199)trial dates are routinely being set on dates in the future which are within and often at the upper end of the guidelines as outlined in thatdecision ─ and are potentially in constitutional jeopardy should the cases sustain any further delay. The systemic delay in this case is theperiod from May 29, 2015 to the trial date of March 9, 2016 [9 months, 11 days] less a reasonable period of one month for trialpreparation. [The institutional delay is therefore 8 months, 11 days].

This is a period that is over the Askov/Morin guidelines and byitself, while not ideal, would still likely represent a constitutionally acceptable period of trial delay given the level of prejudiceexperienced. Unfortunately, the actions of the Crown exacerbated the level of systemic trial delay in this case considerably. (

e) Other reasons for the delay [39] All delay in this case has been covered in my analysis under other headings. Counsel has not argued for the attribution of delayto any other factor in this case. [40] The total delay attributable to the Crown directly [3.5 months disclosure delay] and pursuant to its responsibility for systemic orinstitutional delay [8 months 11 days] is a total of 11 months, 26 days or very close to 12 months. Prejudice [41] The Defendant provided evidence on this issue in the form of an affidavit and he was cross-examined by Crown Counsel.

He isemployed as a home renovator and contractor and he and his common law spouse have two children, ages 6 and 9. I accept his evidencethat he has trouble sleeping and has experienced stress and anxiety with these charges “outstanding for such a long period of time.” Hestated he was not able to accept employment in St. Catherines because of his uncertainty about losing his driver’s licence and wasconcerned about how he would be able to support and assist his family without a licence.

I recognize that to some degree his anxiety hasresulted from the charges being laid but I also do not doubt that the stress and anxiety he has experienced is compounded by the longdelays to a trial date. I don’t believe there was any prejudice to his fair trial rights or his ability to make full answer and defence. [42] I have concluded that the ongoing stress and anxiety experienced by Mr. Dvorak and his family should be taken intoconsideration. I will also infer that he had increased legal fees as a result of the additional unnecessary delay and court attendances toobtain missing disclosure.

I do not doubt that his employment opportunities have diminished a result of the delay and his reputation as aself-employed contractor has suffered. On the evidence I have determined that there has been some specific prejudice that was neitherminimal nor substantial prejudice: R. v. Ritchie, supra. In the end result, I am satisfied that the defendant has suffered a modest degree ofactual prejudice to his security interests as a result of trial delay in terms of increasing stress, anxiety and negative work productivityimpacts.

In addition, the financial costs of additional court appearances attended by counsel, represents an additional prejudicial impact.As well, a relatively modest degree of inherent prejudice can be inferred in respect to this defendant as a result of the general stigma andthe tribulations of nearly 12 months of Crown and systemic delay in having these pending criminal accusations concluded.

Theappropriate characterization of prejudice in this case, in terms of actual and inferred prejudice, is “modest.” Balancing [43] The final consideration involves a balancing of the problems that the delay has caused the Applicant and society’s interests inhaving charges concluded on the merits. In accordance with R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.),”thedecision as to whether s. 11(

b) has been infringed is not to be made on the basis of a mathematical or administrative formula but rather bya judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead todelay or are otherwise the cause of the delay.” It is well accepted that society’s interests in a trial on the merits increases as theseriousness of the charges increases. It must be acknowledged that the charges before the court are relatively serious as all criminalcharges are, but even more so in respect to the widely recognized carnage on our streets and highways caused by substance-abusingdrivers. The exercise of balancing competing interests is described by McLachlan J. in concurring reasons in R. v. Morin, supra:

The task of a judge in deciding whether proceedings against theaccused should be stayed is to balance the societal interest inthat persons charged with offences are brought to trial againstthe accused's interest in prompt adjudication. In the finalanalysis the judge, before staying charges, must be satisfied thatthe interest of the accused and society in a prompt trialoutweighs the interest of society in bringing the accused to trial. [44] As noted above, the total delay directly attributable to the Crown or pursuant to its overall responsibility for systemic delay isjust short of 12 months.

This trial delay is considerably above the Ascov/Morin guidelines of eight to ten months by nearly two months.This finding does not in itself result is a stay because deviations of several months in either direction can be justified by the presence orabsence of prejudice: R. v. G.(C.R.) (ON CA), [2005] O.J. No. 3764 (C.A.); R. v. Ritchie, supra. As Durno J. statedin R. v. Ritchie, a case involving prejudice of a similar nature to the case at bar: I cannot say that there is no prejudice so as to justify a longer period of reasonable delay.

There is some unchallenged specific prejudicethat supports the use of the lower end of the Morin guidelines. [45] Each case is fact-specific and the nearly twelve months of delay may not have been constitutionally unacceptable in another case.However, here, with some specific prejudice, the institutional and Crown delay of almost four months over the top of the applicableguideline, the fact that the defendant was always pressing for disclosure in order to move the case along, and most significantly, theintractable and systemic nature of the Crown disclosure delay, which necessarily must weigh more heavily against the Crown in terms ofits responsibility for systemic delay, I have concluded that the delay is unreasonable and well outside constitutionally acceptable levels. [46] Further, much has been said in s. 11(

b) jurisprudence about the very strong societal interest in trying serious drinking and drivingcharges involving so much public harm, on the merits. Nevertheless, it is now well recognized that in cases where the Crown isresponsible for a significant proportion of the trial delay, this cause of delay weighs more heavily against the State in the balancingexercise. (See R. v. McNeilly [2005] O.J. No. 1438 (Ont. S.C.); R. v. Brown [2005] O.J. No. 2395 (Ont.

C.J.); This is of even greatersignificance given the two decade litany of systemic failures in producing timely video recordings, an appalling state of affairs for whichthe Crown has no answers. I reiterate the characterization of this delay I adopted in 2013: “It seems that the police video recordingservice has become perversely oblivious to trial delay concerns and judicial pronouncements on this subject and is [seemingly]… nowbeyond the reach of any supervisory authority: R. v. Dummett, supra.

In balancing all the considerations, the amount of the delay, thereasons for the delay, the prejudice to the defendant arising from the delay, I am satisfied on a balance of probabilities that the defendanthas established that his interests and society’s interest in a prompt trial outweighs the interests of society in a trial on the merits in thiscase for the above-noted reasons. [47] Accordingly, I have concluded that the defendant’s

section 11(

b) rights have been breached and the charges before the Court willtherefore be stayed. P. Harris J. June 7, 2016.