R. v. Morin, 2012 MBPC 37

Cite: 2012 MBPC 37 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Allison Kindle Pejovic and Lee Turner, ) for the Crown- and – ) ) Christopher Smith, ) Ryan Rolston, Accused ) ) for the Accused ) ) Decision delivered: April 5th, 2012 In Winnipeg, Manitoba ) Mary Kate Harvie P.J. Introduction [1] The accused Christopher Smith is charged with driving impaired and driving over .08 as a result of an incident whichoccurred on October 13, 2009. The matter was first scheduled for trial on November 19, 2010 in Morden, Manitoba.

On that date,Court was cancelled by the presiding Judge due to the weather conditions. The matter was ultimately rescheduled for trial for April 3,2012, approximately thirty months after the incident. [2] The accused has filed a Motion for relief under

Section 11(

b) and Section 24(1) of The Canadian Charter of Rights andFreedoms seeking a judicial stay of proceedings, asserting that his right to be tried within a reasonable time has been denied. Crowncounsel opposes the accused`s application. [3] The motion was argued in Morden, Manitoba on March 20, 2012. As both the accused and the witnesses in this matter resideout of the jurisdiction, counsel were advised on March 29, 2012 that the accused’s motion was granted with written reasons to follow,and the trial date was cancelled. The following are the reasons for granting the motion. The Purpose of Charter

Section 11(b) [4] It is well recognized that the primary purpose of Charter

Section 11(

b) is the protection of the individual rights of theaccused, which include (1) the right to security of the person; (2) the right to liberty; and (3) the right to a fair trial. These rights, as wellas the societal interest in an efficient trial system, were the subject of comment by Sopinka J in R. v. Morin, (SCC),[1992] 1 S.C.R. 771 (at paragraph 28-29): 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 placewhile evidence is available and fresh. The secondary societal interest is most obvious when it parallels that of the accused.

Society as a whole has an interest in seeingthat the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptlyenjoy the confidence of the public. [5] Courts have recognized that not all accused conduct themselves in a fashion which is consistent with the desire to protecttheir

section 11(

b) rights, but rather transform this right “from a protective shield to an offensive weapon.” As part of an assessing of anapplication of this nature, the Court must determine whether the accused has acted in a manner which is consistent “with the desire for a

timely trial”: see Morin, Supra at paragraph 62. The Applicable Law [6] There is little issue with respect to the law which governs an application of this nature. In R. v. Smith, (SCC), [1989] 2 S.C.R. 1120, R. v. Askov, (SCC), [1990] 2 S.C.R.1199 and R. v. Morin, Supra , the Supreme Court ofCanada outlined the factors to be considered in determining whether the delay in bringing a matter to trial has been unreasonable: 1) The length of the delay from date of the charge to the end of the trial; 2) Waiver by the accused, expressed or implied, of any time periods; 3) Is the period of delay “unreasonable” taking into account “the interests

section 11(

b) seeks to protect, the explanation for the delayand the prejudice to the accused”: Morin, para 32; 4) The “explanations for the delay” may include

a) Inherent time requirements

b) Actions of the accused

c) Actions of the Crown

d) Limitations of institutional resources

e) Other reasons for the delay 5) Any prejudice to the accused, including any actual prejudice, or prejudice which may be inferred from the length of the delay. [7] While it is clear that each case must be considered according to its particular circumstances, it is also clear that the longer thedelay the more carefully the Court must assess its cause to determine whether it can or should be excused. Courts have been cautionedagainst approaching the matter with a view to applying a “mathematical or administrative formula” but rather “by a judicialdetermination balancing the interests which the

section is designed to protect against factors which inevitably lead to delay or areotherwise the cause of delay”: Morin, Supra, at paragraph 32. [8] The legal burden on a motion of this nature rests with the accused, however circumstances may establish a secondary orevidentiary burden which rests with the Crown.

In Smith, Supra, the Supreme Court urged that: In all cases, the court should be mindful that it is seldom necessary or desirable to decide this question on the basis of burden of proofand that it is preferable to evaluate the reasonableness of the overall lapse of time having regard to the factors referred to above. 1. The Length of the Delay [9] The process begins with an assessment of the length of the delay, from the date of the charge to the end of the trial: see R. v.Kalanj, (SCC), [1989] 1 S.C.R. 1594.

In this case, the accused is alleged to have committed an offence on October 10,2009, and the Information was sworn on October 13, 2009. The trial was ultimately scheduled for April 3, 2012, approximately thirtymonths after the offence date.

The Motion was heard in advance of the trial date, however both parties expressed a readiness to proceedon the fixed trial date. [10] Given the nature of the offence and the fact that counsel estimated that the matter would take approximately half a day of Courtsitting time, I am satisfied that the length of the delay is sufficiently unreasonable to warrant an inquiry into the reasons for the delay. 2.

The Waiver of Time Periods [11] The Supreme Court of Canada has clearly drawn a distinction between the concept of an accused waiving their rights undersection 11(b), as opposed to certain “actions of the accused” which may impact on the timing of the trial dates and will be discussed laterin this analysis. Any waiver of an accused’s rights under

section 11(

b) must be clear and unequivocal, with full knowledge of the rightsbeing waived. [12] There is nothing in the actions of the accused, either expresses or implied, to indicate a waiver of his right to a trial within areasonable time. From the outset, the accused expressed his desire for an early trial date. When the first trial date proposed wasapproximately two and a half years away, counsel for the accused declined to accept it and request a “special sitting” date.

When thetrial date was adjourned due to weather conditions, defence counsel notified crown counsel, who in turn advised the Court, that a delaymotion may be brought “depending on what day we can offer”: see Transcript January 11, 2011. [13] Counsel for the accused took the appropriate steps to confirm that he was not waiving his client’s

Section 11(

b) rights. Thereis nothing in the actions of the accused, either expressed or implied, to indicate otherwise. 3. Reasons for the Delay

[ 14 ] As the delay in bringing this matter to trial has been significant and having concluded that the accused at no time waived his rights under

section 11 (b), it is necessary to assess the reason behind the delay, recognizing that with any case “some delay is inevitable”. Morin , Supra at paragraph 40 . A. Inherent Time Requirements Specific Time Requirements for this matter [ 15 ] The accused is charged with driving impaired and driving with a blood alcohol over .08. Cases of this nature are notorious for their range of complexity. This reality was the subject of comment by Code J. in R. v. Lahiry; R. v. Carreira; R. v. Davidson; R. v.

Shelson , 2011 ONSC 6780 (Ont SC), noting the increase in the potential complexity in cases of this nature since the Supreme Court’s decision in Morin , supra . When an accused raises a variety of Charter related issues, a case of this nature can take many days of Court time. When the issues are narrowed, the matter can be resolved in much less time. [ 16 ] From a review of the materials and the transcripts, this is a matter where counsel seemed to have focused the issues.

At the motion, Crown counsel fairly pointed out that on the “Certificate of Trial Readiness” [Motion Exhibit 3] which was signed by counsel on March 15, 2010, the “issues admitted”

section indicates “none” and the “issues in dispute”

section indicates “All”. Further, the

section titles “ Charter issues” indicates “10(b); s.8 ”. [ 17 ] Having said that, the form indicates that the Crown anticipated calling three police witnesses. No defence witnesses are noted. No statement from the accused was referenced and there were no other evidentiary issues requiring a voir dire. The form indicates that the “estimate of time” would be “1/2 day”. [ 18 ] The information on the form, including the estimate of time required is consistent with the information contained in the “Pre- Trial Conference Report” [Motion Exhibit 2] completed after the conference held on April 8, 2010.

That document identifies the central issue as being the “reasonable and probable grounds to make the demand” and confirms the Crown’s intention to call three police witnesses. The defence identified one “potential” witness. The parties confirmed the total time requirement for the matter was being “half (1/2) day”. [ 19 ] The forms completed in this matter are also consistent with the comments made by counsel on the record when attempting to secure a date for this matter.

At one point there was discussion about the potential for setting this matter down on the same date as another impaired trial, with the same defence counsel.

When questioned by the Court as to whether the proposed approach was realistic, Crown counsel indicated that the counsel in question “knows what his defences are” and expressed that she was “content” with having two matters in one day: [Transcript March 23, 2010] [ 20 ] From a review of all the materials, while there were no specific admissions made by defence counsel, it does appear that both counsel anticipated this matter to be a relatively straightforward matter requiring approximately half a day of court time.

Assessment of “Intake” Adjournments [ 21 ] It is well recognized that even straightforward matters have “intake” requirements which necessitate some delay prior to the matter being set down. This case is no exception. The accused was given a first appearance date approximately one month after the offence. The accused began with one counsel but switched within the first few months.

Having said that, it also appears that discussions between Crown and defence had commenced before new counsel went on record. [ 22 ] The intake period in this matter spanned the period of October 10, 2009 (the offence date) to March 23, 2010 (date when both counsel definitively indicate they are prepared to set the matter down), a period of approximately five months. Of that time, there appears to be a delay of approximately six weeks which can be attributed to the accused’s change of counsel. One month of this period is clearly attributable to the delay prior to the first appearance.

The remainder of the period can be attributed to discussions between counsel, including an indication that defence counsel provided information to the Crown which they need to “check out with police” [Transcript, November 24, 2009].

On the next appearance, counsel agreed “to put that matter over to January 12 th , Your Honour, for the Crown to get back to me on a matter I have raised with them.” [Transcript December 22, 2009]. [ 23 ] The type of intake discussions involved in this case are not unusual, cannot be avoided and should not be discouraged, particularly when they are conducted by experienced counsel who appear to be acting diligently. The only caution relates to discussions involving matters which appear in rural and other Courts which sit with less frequency.

In those instances, both counsel should ensure that they take full advantage of the time between each adjournment, which in this case was anywhere between two weeks and a month for each adjournment. [ 24 ] The initial intake period took just over five months. Of that time, six weeks can be attributed to the defence due to a change in counsel. A further six weeks can be attributed to the Crown while they were investigating an issue raised by defence counsel. The remainder of the time appears to be attributable to the normal intake requirements, and should not be attributable to either counsel. B.

Actions of the Accused [ 25 ] In assessing this factor, it is important not to be seen as assessing “blame” or implying “improper motives” to the accused or to his counsel. But even with that qualifier in mind, there is little that can be seen from the actions of the accused as contributing to the delay in this matter. As already noted, there appears to have been meaningful discussions between counsel to streamline the trial. There were no unusual motions made or exceptional relief sought. The case was thought to have been sufficiently straightforward as to require only a half day of court time.

Indeed, it is noteworthy that the discussion about the need for a special sitting came as a result of the defence counsel’s refusal to accept the initial trial dates offered, which were some two and a half years away. [ 26 ] While there is nothing about the conduct of defence counsel respecting his initial dealings with this matter, up to and including the first trial date, there were some specific concerns raised at the motion respecting the period prior to the setting of the second trial

date. As is the present practice, part of the process in setting a trial date involves discussion prior to court between counsel and theirrespective support staff. Crown counsel relies on the affidavit of Angeline Birch, an administrative assistant with the Constitutional LawBranch which has attached a series of email exchanges between Mr. Turner, Crown counsel with the Department of Justice and defencecounsel’s administrative assistant, attempting to identify a mutually convenient trial date. The specific concern raised by Crown counselrelates to two areas, which will now be addressed. Defence Counsel’s

Schedule [27] As part of the efforts to reschedule this matter, crown counsel forwarded a number of potential dates to defence counsel’ssupport staff. It should be noted that this process began after the court had authorized a “special sitting”, an issue which will be dealt withfurther when assessing the impact of institutional delay on this matter. On February 5, 2011, defence counsel was offered a single date,being May 16, 2011, but that date was not acceptable due to another scheduling commitment.

In both the email exchange and on therecord Crown counsel indicated that they were expecting more dates to become available and counsel chose to wait to determine whatextra dates might be authorized. [28] On March 7, 2011, the day prior to the next appearance of this matter, a series of six individual dates between October, 2011and March 2012 were offered. On March 8 the matter was adjourned in order to allow defence counsel to respond.

On March 16, 2011Crown counsel sent a follow up email inquiring about the dates provided and indicating that “there are now some other matters” on threeof the dates previously offered. On March 17, defence responded by accepting the date of November 17, 2011. Unfortunately that dateappears to have been offered in error, and the alternative date of November 24 was not available to the defence. Defence responded byoffering four separate dates in November, none of which were acceptable or even the subject of comment. [29] It is not necessary to review the details of each exchange between the parties.

The preceding paragraph captures the flavour ofthe discussion, which was cordial and reflected an attempt by all parties to find a mutually acceptable date.

Due to the fact that defencecounsel was committed to a three month trial commencing in January, 2012, the date of April 2, 2012 was eventually fixed. [30] In her very fair submission, Crown counsel acknowledged that there was only one “early” date offered to defence counsel inMay of 2011, and recognized that the Court may be hesitant to conclude that the failure of defence to accept a single “cherry picked”date should result in the wholesale forfeiture of an accused rights under

section 11(b). Had a series of dates been offered through thespring and summer of 2011, the conclusion in this matter might have been very different. While acknowledging the date offered in May,I cannot conclude that counsel’s inability to accept that single date, due to a scheduling conflict, seriously impacts on the assessment ofthe delay in this matter. [31] In R. v.

Barkman and Thiessen (2005),2004 MBCA 151 , 189 C.C.C.(3d)257(Man.C.A.), Scott C.J. reaffirmed theneed for a “reasonable balance” to be applied when assessing the availability of an accused’s counsel of choice versus the delay whichmay be occasioned due to the availability of that counsel. Unlike the situation in Barkman, both counsel in this matter appear to havemade sincere, if somewhat protracted, efforts to locate and fix a date.

While there were some delays in the response from the defenceside, they did not play a meaningful role in the delay in setting this matter down. [32] What did affect the delay in this matter was the unavailability of defence counsel from January to March, 2012.

When theearlier dates were not acceptable or were otherwise taken (October 20 was offered and then withdrawn; November 17 was offered inerror; November 24 was not available for the defence; and December 15, was offered and withdrawn; the dates of November 2, 4, 14and 18 were offered by defence but presumably not available from the Court’s perspective) both counsel had no alternative but to look tothe 2012 calendar year. The delay of three months, from January to March can be attributable to defence.

The Timing of the Delay Motion [33] Crown counsel raises a concern with respect to the timing of the delay motion, which was the subject of discussion betweencounsel immediately after the cancellation of the first trial date. She points to the fact that the motion was not actually filed untilFebruary 21, 2012, and submits that his actions in this regard were inconsistent with a genuine desire to move this matter along. [34] Crown counsel also submits that if a delay motion had been filed earlier in the proceedings, it may have been possible toaccommodate this matter at an earlier time.

She submits that counsel may have been able to take advantage of dates as they becameavailable within the Court

schedule due to other matters being cancelled or rescheduled. [35] The difficulty with this argument is two-fold: no evidence was presented to suggest that there were any trial dates that hadbecome available in the months preceding the application; and it is not consistent with the evidence as to the very limited dates that wereavailable. This appears to have been the reality of the availability of court time in Morden during the periods in question.

Indeed, as bothcounsel noted, once the motion was filed, it was very difficult to secure a date in advance of the trial date for the motion to be heard. [36] This should not be taken as an acceptance of the practice of waiting until just prior to the trial date to argue a motion of thisnature. When raising a concern about delay, counsel should bring the matter before the Court in a timely fashion. In larger centres,where trial dockets run on a daily basis, a

section 11(

b) application may well trigger a process which would allow counsel to access dateswhich become available due to the collapse of other cases. And while such an outcome may be less likely in rural centres, it is the bettercourse of action. In this instance, however, there is no evidence that an earlier application would have had that effect. C. The Actions of the Crown [37] It is not necessary to review all the exchanges between counsel. They have been dealt with in assessing the action of thedefence. In considering the exchanges as a whole, it is evident that crown counsel offered dates as they were provided by the trial

coordinator’s office. Nor is there any suggestion that the matter was delayed due to the

schedule of any particular Crown counsel. The Crown attorneys in Portage la Prairie do not take the position that the assignment of specific files should prevent a trial from proceeding on an earlier date if court time is available. As confirmed during submissions, matters in Morden are set pursuant to the availability of the Court, rather than the availability of Crown counsel. [ 38 ] The one area of concern relates to the fact that in rescheduling this matter, Crown counsel appears to have considered the availability of dates only in the Morden court schedule.

The possibility of the matter being heard at another location was raised by the Court during the first appearance after the cancelled trial date when Crown counsel requested the presiding Judge to authorize a special sitting date. Describing the backlog in the Morden Court system as being “so significant” the Court inquired “if the Crown is amenable” to moving the matter to Portage la Prairie, Winnipeg or somewhere else “to facilitate an earlier hearing.” Crown counsel confirmed again that the witnesses were all police officers who worked in the area.

Unfortunately, there is no evidence of any further steps being taken to follow up on this suggestion. [ 39 ] Defence counsel argues that there is nothing “specific to Morden” that would necessitate the matter being heard in that location. There was no significant argument to counter that suggestion. While there is no direct evidence to suggest that earlier dates were available in other locations, it is fair to assume that Court sittings in locations that sit on a more regular basis would have more flexibility and availability in their schedules.

Indeed it is difficult to image that another centre could not accommodate a half day impaired driving trial conducted by experienced counsel who had discussed the issues amongst themselves and with a Pre-Trial Conference Judge. [ 40 ] While it is safe to assume that some delay was occasioned by having the matter heard in Morden, it is difficult to quantify in days or months the actual impact of this action.

Given that Courts have been urged not to take a “mathematical” approach to applications of this nature, this should be treated as another factor to be weighed by the Court in the overall assessment of this matter. In the future, counsel should be proactive in exploring all options when the delays in obtaining a trial date in a particular location have the potential of raising

section 11 (

b) concerns. D. Institutional Delays [ 41 ] Defence counsel argues that the most significant delays in this matter can be attributed to institutional delays, and more specifically to those delays related to the limited resources available in Morden, Manitoba. [ 42 ] Institutional delays are a reality for all Courts across the country. This factor has been the subject of considerable judicial discussion and has played a significant role in the

section 11 (

b) jurisprudence. While the Supreme Court has acknowledged that “some allowance must be made for limited institutional resources” (see Askov , supra ) , the Court in Morin , supra, noted that “this consideration cannot be used to render

section 11 (

b) meaningless” and acknowledged that “There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources” (see paragraph 48). [ 43 ] The accepted definition of institutional delay is that delay which occurs when both counsel are ready to proceed to trial but the system cannot accommodate the case. While certain guidelines have been suggested, it is clear that such guidelines are not to be treated as inflexible and that the circumstances of each case must be assessed.

Indeed, while some cases may, by necessity, exceed any suggested guidelines, others should easily be accommodated. As well, an individual Court’s location was taken into account by Cory J. in Smith , supra . The question of the impact of institutional delays must be assessed “in light of the facts of each case. There can be no certain standard of a fixed time which will be applicable in every region of the country.” (at p.1226) [ 44 ] During the relevant time period, the Court in Morden sat approximately four times a month, with two fixed docket days and two dedicated trial days.

Generally speaking, where trial matters could not be accommodated during the dedicated trial dates, “special sitting” dates could be requested from the trial coordinator’s office in Winnipeg. However, before a special sitting could be authorized, Court approval was required and the matter had to be the subject of a Pre-Trial Conference. [ 45 ] Such was the course that was followed when the initial special sitting was set in this matter.

While it remains important for the Court to control its process and monitor any special sittings that are provided, there are two troubling aspects to this process which bear comment. First, the need for a special sitting was triggered by the already significant delay in obtaining a date using the regularly assigned trial dates. Secondly, the need to request a special sitting triggered a process which added to the delay before a date could be secured.

The transcripts confirm that the matter had to be adjourned from March 23 to April 27, during which time the Pre-Trial was heard and the date of November 19, 2010 was agreed upon. While the outcome of the special sitting date “process” was an earlier trial date than the one initially proposed some two and half years away, it is noteworthy that the process was invoked because of the institutional delays which existed at the time. [ 46 ] During the motion defence counsel rightly pointed out that the control of the Court calendar rests with the Court, working in conjunction with the Crown attorney’s office.

He argues the futility of defence counsel offering earlier dates, as the entire process of date setting is dependent upon the availability of the Court. This reality was highlighted by the fact that when dates were offered by the defence, they were not even the subject of comment. When the Court effectively controls the provision of trial dates, then the lack of trial dates is also the Court’s responsibility. This is a classic situation where institutional delay was largely responsible for the significant delay in having this matter brought to trial. E.

Other Reasons for the Delay [ 47 ] As indicated at the outset, the initial trial date in this matter was cancelled by the assigned Judge due to the weather conditions. Both counsel noted that they were able to travel most, if not all of the way, to Morden. [ 48 ] Delays resulting from inclement weather conditions are not unusual in Manitoba. The actual impact of this delay on the accused will be considered when assessing the issue of prejudice. It is sufficient to say that when such a delay occurs, it is incumbent on the Court system to recognize the affect this can have on an accused person’s

section 11 (

b) rights. Where weather conditions result in a trial cancellation, every effort should be made to provide expedited hearing dates, either in the location where the offence occurred or,

where possible, in a nearby Court venue. Unfortunately, that is not what occurred. Indeed there was a 17 month gap between the firsttrial date and the second date ultimately set. 4. Prejudice to the Accused [49] Prejudice can be inferred from delay alone. The inference is a rebuttable one, and is most likely to be drawn when the actionsof the accused have not contributed to the delay. The longer the delay, the more likely it is that prejudice will be inferred. [50] It is argued that the prejudice to the accused comes in several forms.

The first relates to the uncertainty which comes fromhaving a criminal matter unresolved for a lengthy period of time. Counsel argues that this is more so when the offence is one whichinvolves mandatory minimum penalties and other consequences, such as driving prohibition. The “anxiety, concern and stigma” of acriminal prosecution was recognized early in the jurisprudence, and was referenced again by Sopinka J. in Morin, supra. Crown counselcounters that this type of uncertainty affects all accused, including those charged with drinking and driving offences.

She points to anumber of other cases in which delays of a longer duration were tolerated because the accused was unable to demonstrate actualprejudice. [51] What makes the circumstances of this case somewhat unusual is that the accused normally resides out of the jurisdiction, andwas required to incur significant travel costs when attending for the first trial date.

Crown counsel urges the Court to disregard thisfactor, acknowledging that while it was “unfortunate” that the trial could not proceed on the initial date set, the accused is responsiblefor incurring the costs related to defending an offence committed in another jurisdiction. [52] While recognizing that the extra financial burden imposed on the accused is the traditional type of prejudice which affects theability of the accused to make full answer and defence, it does impact his “security of the person” insofar as it has clearly added to thestress of the proceedings, both emotionally and financially.

This type of prejudice cannot simply be ignored and must be considered andweighed along with all of the other factors in this case. Conclusion [53] The issue of delay has been before the Courts since the inception of the Charter. The test to be applied is not a mathematicalone, and the relief sought should not be granted lightly. Crown counsel emphasizes the seriousness of drinking and driving offences andthe need for offenders to be dealt with according to the merits of the case. On that point, there is no dispute.

I would hasten to add,however, that it is in the interest of all, including the public, to have these matters dealt with in a timely fashion and to require offendersto face sanction, where applicable, within a reasonable time frame after an offence is committed. [54] In

summary, I note the following:

a) The length of the delay, being a period of almost 30 months from the dates of the offence to the trial date, is unreasonableand warrants an assessment of the contributing factors;

b) At no time did the accused either expressly or implied waive his rights under Charter

section 11(b);

c) The inherent time requirements accounted for approximately three months of time prior to the setting of the first trial date;

d) In R. v. Sharma, (SCC), [1992]1 S.C.R. 814 at p. 827, Sopinka J. noted “If the accused was anxious toproceed, one would have expected something more in the form of protest or inquiry about other dates.” I am satisfied the accused didprotest the dates offered and that the actions of the accused did not significantly contribute to the initial delay, but for a period ofapproximately six weeks at the outset of the proceedings when the accused changed counsel. When a second date was being obtained, Iam mindful that there was a period of approximately three months where counsel was unavailable for trial

e) At the outset of the proceedings there was a period of approximately six weeks while crown counsel “investigated”information provided by the defence. More difficult to quantify is the impact of the Crown choosing to prosecute this matter in Mordenrather than in another centre which sits more frequently;

f) Limits on institutional resources played an overwhelming role in the delay in bringing this mater to trial. The first trial datewas approximately 13 months after the offence, and was only obtained after a “special sitting” date was authorized. Given that thismatter was estimated to require only a half day of Court time, the initial delay was bad enough. When a second trial date was discussed,the bulk of the dates offered were in the fall and winter of 2011-2012, approximately eight months away and a full two years after theoffence date;

g) While it is recognized that the first trial date was cancelled due to weather conditions, it is important that appropriate stepsbe taken to expedite the rescheduling of cancelled trials. Unfortunately that did not occur in this instance;

h) There has been some prejudice to the accused, some of which can be inferred from the length of the delay and some actualfinancial prejudice. [55] Taking into account and balancing all of the foregoing factors, I am satisfied that the accused’s right to a trial within areasonable time pursuant to

section 11(

b) of the Canadian Charter of Rights and Freedoms has been violated. Pursuant to Chartersection 24(1) I am directing that a judicial stay of proceedings be entered. “Original Signed By”

Mary Kate Harvie P.J.