R. v. Fekete, 2014 ONCJ 796

COURT FILE No.: Toronto DATE: 2014-10-20 CITATION: R. v. Fekete, 2014 ONCJ 796 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JEREMY FEKETE Before Justice Mara Greene Reasons for Judgment released October 20, 2014 E. McDermott…………………..……………………………………… for the Crown A. Little……………………………………………--.…………….….for Jeremy Fekete Greene, J: Introduction [ 1 ] On April 28, 2013, Mr. Fekete was arrested and charged with impaired driving and with driving while having over 80mg of alcohol in 100ml of his blood. His trial date was set for June 16, 2014 almost fourteen months after his arrest. Mr.

Fekete’s trial did not conclude on the original trial date, as counsel underestimated the amount of time required to complete the trial. The earliest continuation date offered was October 3, 2014, almost four months after the original trial date. In light of the seventeen months of delay in this relatively simple matter proceeding to trial and completing, Mr. Fekete argued that his rights as guaranteed by

section 11(

b) of the Charter were violated.

Summary of Evidence [ 2 ] On April 28, 2013, a vehicle crashed into a hydro pole. It is alleged that Mr. Fekete was driving the motor vehicle when it crashed. It is also alleged that at the time of driving Mr. Fekete had a blood alcohol concentration of 220mg of alcohol in 100ml of blood. [ 3 ] This is the second 11(

b) application brought by Mr. Fekete. The first application was dismissed and my written reasons were provided to counsel on June 20, 2013. In my original decision the facts relevant to the delay from April 28, 2013 until the first trial date were reviewed in detail and I do not propose to repeat them here. The original decision is attached to this decision for reference purposes. [ 4 ] On June 16, 2014, Mr. Fekete’s trial was set to proceed at 10:00 am in courtroom 126. On this date, in addition to having Mr.

Fekete’s trial, which was set for one full day, a complete trial list from another courtroom was transferred into courtroom 126. Despite having two trial court lists, not a single matter was ready to proceed at 10:00am. Crown witnesses on the Fekete matter had not yet attended court and parties for the remainder of the trials on the second list were not ready to proceed.

By 10:30 a.m., the witnesses on the Fekete matter were all present and the trial started. [ 5 ] The Fekete trial did not conclude on June 16, 2014 and in light of the number of witnesses that still needed to testify, counsel advised that a further full day would be required. The earliest court date offered in light of the court’s

schedule was October 3, 2014.

[6] An affidavit from Mr. Fekete was filed in support of the original motion and Crown counsel, cross-examined Mr. Fekete on hisaffidavit. According to Mr. Fekete, as a result of the delay in his case going to trial, he has missed a job opportunity and suffered stressand loss of sleep. Mr. Fekete has seen a medical practitioner and was prescribed sleeping pills. No additional information related toprejudice was provided on this motion. Issues [7] The only issue on this motion was whether, in light of my findings on the first 11(

b) application, has the additional delay of 109 days,from June 16, 2014 until October 3, 2014, tipped the scales and rendered the delay in completing Mr. Fekete’s trial constitutionallyintolerable. Analysis [8] In my original decision, I concluded that of the overall delay of thirteen months and seventeen days, the total state caused delay was10 and one half months.

I apportioned the delay as follows: To summarize, in my view, the total intake time, which involves retaining counsel, providing disclosure, reviewing the disclosure andconducting a crown pre-trial, should have taken a maximum of two and a half months (April 30, 2013-June 30, 2013 and September 10,2013-September 24, 2013).

In my view the ten week delay between June 30, 2013 and September 10, 2013 is attributable to the Crown.I further find that of the eight months and three weeks between September 24, 2013 and June 16, 2014, three weeks is neutral preparationtime and eight months is institutional delay as the matter was ready to proceed to trial but the court could not accommodate it. In lightof these findings, the total state caused delay in the case at bar is 10 and a half months. [9] In dismissing the 11(

b) application, I ultimately concluded that while the overall state caused delay exceeded the upper end of theMorin guidelines by fifteen days and despite suffering actual prejudice, the delay in bringing the matter to trial was not constitutionallyintolerable in light of the gravity of the offences and the strong societal interest in this matter being tried on its merits. [10] The matter has now been delayed by an additional three and a half months. Defence counsel argued that anywhere from two toeight weeks of this additional delay are properly characterized as institutional delay.

Counsel argued that this additional delay takes thiscase well above the Morin guidelines in a case where the defendant has suffered actual prejudice and as such Mr. Fekete’s right to a trialwithin a reasonable time as guaranteed by

section 11(

b) of the Charter has been infringed. [11] Crown counsel argued that the three and a half month delay should be considered inherent time requirement as the delay was causedby both counsel underestimating the time required for the case. [12] I will not repeat my original findings from my judgment issued on June 20, 2014. The findings of that judgment are to be applied tothis ruling. The only issue I will address in this ruling is the allocation of the further 109 days of delay caused by the fact that the trialdid not conclude on the original trial date and the impact this has on the 11(

b) analysis. Analysis (

i) Allocation of time [13] A number of courts have addressed the issue of allocating delay where a trial has to be rescheduled because it was not completedwithin the original time frame. The Court of appeal reviewed these authorities in R. v. Tran, 2012 ONCA 18 , [2012] O.J. No.83(C.A.) at paragraphs 55-56. The court stated,

[55] As stated at para 67 of Lahiry: These authorities hold that the case must be given priority in the system and that the delays resulting from re-scheduling the trial datewill generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on thecircumstances. See: R. v. Godin 2009 SCC 26 , [2009] SCC 26, [2009] 2 S.C.R. 3, R. v. Bruce (2010), 2010 ONCA 689, 261 C.C.C. (3d) 455 at paras. 14-16 (Ont.C.A.); R. v. Allen[ (1996), (ON CA), 110 C.C.C. (3d) 331(Ont.C.A.)], at pp. 347-351; R. v.

Satkunanathan (2001), (ON CA), 152 C.C.C. (3d) 321 at paras 43-5 and 54-5(Ont.C.A.); R. v. M.(R.) (2003), (ON CA), 180 C.C.C. (3d) 49 at paras 6-9 (Ont.C.A.); r. v. (W.(A.J.) (2009), 2009ONCA 661 , 257 O.A.C. 11 at paras 29-43 (Ont.C.A.); R. v. Khan, supra at paras 58-71. [56] The following comments from para 27 of R. v. Allen (1996), (ON CA), 110 C.C.C. (3d) 331 (Ont.C.A.), areparticularly helpful: When addressing s.11(b), one must consider the inherent time requirements needed to get a case into the system and to complete thatcase; R. v. Morin, supra, at p.16.

Those time requirements can include adjournments necessitated by the need to find additional court timewhen initial time estimates prove inaccurate; R. v. Hawkins (1991), (ON CA), 6 O.R. (3d) 724 at 728 (C.A.), aff’d.(1992), (SCC), 11 O.R. (3d) 64 (S.C.C.); R. v. Philip (1993), (ON CA), 80 C.C.C. (3d) 167 at 172-73 (Ont.C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s.11(

b) calculus. Therecognition and treatment of such inherent time requirements in the s.11(

b) jurisprudence is simply a reflection of the reality of the worldin which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand oncourt resources. The system cannot revolve around anyone case, but must try to accommodate the needs of all cases. When a caserequires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide thoseadditional resources [14] After reviewing these authorities, the Court of Appeal, in R. v.

Tran, supra, stated that of the four months additional delay caused bythe trial not finishing in the time allotted, two months were attributable to inherent time requirements of the case and two months wereallocated to institutional delay (see para 57). [15] In reaching this conclusion the court went on to note the challenges of obtaining a further full day of court time in the Ontario Courtof Justice in the greater Toronto area.

Despite taking notice of this unfortunate reality, the Court went on to conclude that “ a delay ofone to two months is not unreasonable for an out-of-custody matter provided reasonable efforts are made”. In my view, in finding thatthe subsequent two months delay was institutional delay, in a case where the defence was at fault for underestimating the time requiredand the Court had already taken steps to accommodate the additional time needed, the Court of Appeal appears to have formed theconclusion that trial courts should make all reasonable efforts to

schedule further evidences within two months of the original trial date. I appreciate that every case is fact dependant and that trial judges should be careful not to paint too broad a stroke from any individualcase that is based on specific facts. I further note that the Court in Tran did not propose a hard and fast rule that should be blindlyapplied by trial Judges to all cases. I note, however, that the facts surrounding the further evidence date in R. v.

Tran, are very similar tothe facts in the case at bar and therefore the case does provide assistance in addressing the issues raised in this case. [16] The finding in R. v. Tran, supra, that the further evidence ought to have been accommodated within two months of the first trialdate, makes sense in the context of 11(

b) when one considers the implications of cases continuing months and months apart. Wherecredibility is in issue, it becomes more and more difficult for the parties and the trial judge to recall impressions of witnesses and the fulleffect of the evidence. It often means that a trial judge will be asked to make credibility findings as it relates to witnesses whoseevidence conflicts, when one witness was heard four months earlier while the other witnesses testifies on the day closing submissionsare made. These are issues that potentially strike at trial fairness which is one of the core considerations for

section 11(

b) of theCharter. [17] While there is a real value in setting further evidences relatively close in time to the original trial date, it cannot be ignored thehavoc this necessarily will reap on the Ontario Court of Justice. As noted above, original trial dates are never set within two months. We have insufficient court space to accommodate this.

Therefore, to meet this requirement the court will have to double book cases andhope that some cases resolve in order to accommodate the further evidence without delaying other cases in the system. [18] As a judge sitting in a busy downtown Toronto Court, the findings in R. v. Tran, supra, are somewhat difficult to apply. On onehand, the Court of Appeal quotes from R. v. Allen, supra, stating that the court cannot be expected to push other cases aside to

accommodate the further evidence. On the other hand, the Appellate Court notes that all reasonable steps should be taken to accommodate a further evidence within 1-2 months of the original trial date. As noted above, this is a difficult time frame to meet without double booking our courtrooms. That is exactly what happened in the case at bar. Counsel were advised on September 23, 2014, when the 11(

b) application was argued that this matter was actually scheduled on top of another trial. Fortunately, other cases in the courthouse collapsed and the matter was re-assigned to a different judge. The fact remains, however, that even to obtain a date three and a half months later this case was put over another case. [ 19 ] In some respects the fact that the case was put over another trial, is proof that the court was trying to prioritize the further evidence.

What is unknown is why, if the matter was being placed on an existing trial list regardless, the matter had to go over to October instead of being given a date in early September. [ 20 ] I appreciate summer months are difficult, many people are on holidays and there are few judges and staff around. It is therefore harder to double up a courtroom. But by September, on the evidence presented in the case at bar, this matter could have just as easily been placed on top of an existing trial list as it could be in October. There appears to be no rhyme or reason to the October date.

It is difficult to conclude that reasonable efforts were made to set the further evidence quickly when there is no explanation for why, if this case was being put over a previously set trial list in any event, it could not be set over a trial list in September. [ 21 ] In applying the decision in R. v. Tran , supra , to the facts in the case at bar, I am satisfied that given the summer months it is unreasonable to expect that Mr. Fekete’s trial could be scheduled before September, 2014.

I therefore find that the delay from June 16- September2, 2014, so two and a half months, is attributable to the inherent time requirements of the case.

In my view, based on the record before me, including that this case was doubled up with another trial list for the continuation date, and the absence of evidence as to why it could not have been placed over a trial list four weeks earlier, I allocate the remaining four weeks of delay to institutional delay, thereby bringing the entire state caused delay up to 11 ½ months. [ 22 ] In attempting to allocate the additional three and a half month delay in the case at bar, I am mindful that, at least in this courthouse, it is not unheard of for lawyers to intentionally underestimate trial time in order to avoid having to conduct a judicial pre-trial or in the hopes of securing an earlier trial date.

In light of the past case law which requires the court to prioritize continuing trials, this is not always a bad tactical decision. It is, nonetheless a tactical decision. The concern always arises, that by endorsing a short turnaround time for continuing trials, we are creating a system that encourages counsel to underestimate trial times. It is therefore my view that where the trial judge concludes that defence counsel intentionally underestimated the time required to complete the trial, the court should not be required to bend over backwards, adjourn other matters, and prioritize the continuing case.

To allow this to happen just creates further backlog, increases the number of further evidences for trial judges to juggle and creates havoc in trial scheduling. [ 23 ] In the case at bar, there is evidence that at the Crown pre-trial, the trial crown had originally estimated the trial would take more than one day. Defence counsel disagreed. It appears, however that at the end of the day, both counsel chose to set one day for trial. This, in my view, given the entire record before me, does not lead me to conclude that the defence intentionally underestimated the time required for trial.

I make this finding for two reasons. Firstly, the bulk of the evidence heard at trial was presented by the Crown, not the defence. This put the Crown in a better position to know how long this case would take. Secondly, the time estimate, while off, was not as wrong as it first appeared. Time was lost on the original trial date because Crown witnesses were late for court and the court had a number of other trial matters on the docket.

Moreover, while a full day was set for the second trial date, the matter actually concluded in half a day (albeit this was in part because a Crown witness, a police officer, failed to attend Court for the trial. No explanation was provided as to why the officer did not attend. The Crown chose to close its case instead of seeking an adjournment for the police officer to attend). (ii) Prejudice [ 24 ] As I noted in my original judgment, Mr. Fekete is a 25 year old young man with no criminal record who hopes to become a firefighter one day. In pursuit of his dream, Mr.

Fekete obtained a certificate in firefighting in 2012. In a job interview, however, Mr. Fekete was advised that he had a better chance of securing a position as a firefighter if he had more life experience. He therefore put his application on hold and secured other employment in attempt to gain life experience. [ 25 ] At the time of the original motion, Mr. Fekete was working for a company where he delivered and installed kitchen cabinets. I have no reason to believe his work situation has changed.

[ 26 ] According to Mr. Fekete, he has suffered substantial stress and anxiety as a result of the delay in this matter proceeding to trial. He has had difficulty sleeping and in March 2014 his doctor prescribed sleeping pills. Moreover, Mr. Fekete testified that the strain on him started to become worse in February and March of 2014. I have no evidence of the impact of the additional delay on Mr. Fekete as no further materials were filed. [ 27 ] In addition to the anxiety and loss of sleep, Mr. Fekete had to turn down a job opportunity. In January 2014 he was offered a promotion.

This promotion required him to have a driver’s license. As Mr. Fekete was unsure whether he would have a license after his trial, Mr. Fekete had to turn down the job. [ 28 ] Crown counsel argued that all the prejudice outlined above is prejudice arising from the charge and not the delay and as such it weighs little in the 11(

b) analysis. [ 29 ] As noted in my original judgment, I found Mr. Fekete to be a credible and reliable witness. I completely accepted his evidence that he wanted his trial to proceed quickly and that he has suffered actual prejudice in the form of stress, anxiety and loss of sleep as a result of the delay in this matter proceeding to trial. I appreciate that some of the stress and anxiety that Mr.

Fekete has suffered is a product of being charged, but given that the stress has become worse over time and the loss of sleep did not require medication until March, 2014, I am satisfied that much of the stress and anxiety suffered by Mr. Fekete is a product of the delay in his matter proceeding to trial as opposed to being caused by the fact of being charged. In light of the emotional impact of the delay on Mr. Fekete, I find that the delay in this matter proceeding to trial has affected his security interests.

I appreciate that given the overall delay in this matter proceeding to trial, it would be open to the court to infer prejudice. In addition to any inferred prejudice that arises from the delay, I also find that Mr. Fekete has suffered actual prejudice. [ 30 ] I place less weight on the loss of the job opportunity. The loss of the job opportunity only amounts to prejudice arising from the delay if Mr. Fekete was acquitted of the charge before the court. Had Mr. Fekete had his trial before March 2014, and been convicted, he still would not have been able to accept this job.

For this reason, I do not consider the loss of the job opportunity to be a substantial source of actual prejudice suffered by Mr. Fekete. I do, however, appreciate that in many respects Mr. Fekete’s life has been put on hold until the conclusion of his trial and that this is a form a prejudice that I may consider. (iii) The Balancing Process [ 31 ] In this final step of the 11(

b) analysis, the court is required to balance the impact of the delay on the defendant with society’s interest in a trial on its merits. [ 32 ] The overall delay in this matter proceeding to trial is seventeen months. Nine months of the delay is attributable to lack of intuitional resources and ten weeks of the delay is attributable to the Crown in failing to provide disclosure in a timely fashion for a total state caused delay of eleven and a half months. This is six weeks over the very upper end of the Morin guidelines. [ 33 ] As stated in my earlier decision, I am mindful that many courts have found that delay caused by the Crown is weighed more seriously in the 11(

b) analysis than delay caused by the lack of institutional resources (see R. v. Yun, [2005] O.J. No. 1584 (SCJ) , R. v. Duszak, supra, and R. v. McNeilly, [2005] O.J. No. 1438 (SCJ) ). In the case at bar over two months of the eleven and a half months of the state caused delay was caused by the Crown. In addition to causing two months of delay by failing to provide disclosure in a timely fashion, the delay in providing disclosure also led to Mr.

Fekete or his counsel having to make additional court appearances in hopes that full disclosure would finally be received. [ 34 ] Secondly, many courts in recent years have held that the government has had 20 years to adjust and attempt to deal with the institutional delay in the Ontario Court of Justice, as such; delays in excess of eight months should normally be found to be constitutionally intolerable. Justice Green held in R. v.

Duszak, supra, at paragraph 65, Premised on years of local experience, a protocol has developed in this jurisdiction regarding institutional delay in routine drinking and driving prosecutions. On canvassing the accumulating authorities, Hryn J. observed that, “There is current case law specific to Old City Hall, that a reasonable delay with respect to drinking and driving cases should be at the lower end of the range of eight to ten months set out in Morin”: R. v. Salehji [2010] O.J. No. 4889, at para. 10 (CJ) . (See also: R. v. Leung, [2012] O.J. No. 1874, at para. 104 (C.J.) and R. v.

Taylor , 2013 ONCJ 138 , at paras. 28-30 .) This court’s reduced tolerance for institutional delay accord’s with Sopinka J.’s recognition in Morin , at para 52, “that when the case load has been constant over a substantial period of time the delay [of eight to ten

months] envisaged by the guidelines may be regarded as excessive [1] . [ 35 ] I also appreciate the reality that the Morin guidelines are just guidelines and that cases falling above the Morin guidelines do not automatically fail. In fact, in my earlier decision, while the state caused delay fell above the Morin guidelines, I still found that Mr. Fekete’s rights as guaranteed by

section 11(

b) of the Charter were not breached. Having said that if, the upper end of the Morin guidelines is considered, than the delay in this case is six weeks over the upper end of the range and over three months greater than the lower end of the range. [ 36 ] As noted in my original judgment, there is a strong societal interest in having this case decided on its merits. There is always a strong public interest in prosecuting drinking and driving cases and in the case at bar, there is even a stronger interest in prosecuting this case given the number of statutorily aggravating factors alleged.

In this case, it is alleged that Mr. Fekete’s blood alcohol concentration was over three times the legal limit and he drove his motor vehicle into a hydro pole. [ 37 ] In balancing the above factors, it is important to note that this is not a case where Mr. Fekete intentionally delayed his case in the hopes of creating a good record for an 11(

b) application. This is not a case where anyone could conclude that Mr. Fekete wanted his matter delayed in anyway. Mr. Fekete retained counsel quickly, a trial date was set even though some disclosure was still missing and the Crown and court were advised early on that Mr. Fekete was concerned about delay in this matter. [ 38 ] In my view, Mr. Fekete has suffered actual prejudice in relation to the delay in this case. The stress has taken a physical toll on him causing him to seek medical assistance. Mr.

Fekete has attended court numerous times for his matter on time and ready to proceed, only to be met with delays where disclosure was not ready and with witnesses who did not arrive on time (although I appreciate that a new date would have nonetheless been required as the officers who were late did attend by 10:30am). While this is a serious case, with a very strong societal interest in this matter being tried on merits, when I balance all the relevant factors, I find that the delay in the case at bar is constitutionally intolerable and that Mr. Fekete’s rights, as guaranteed by

section 11(

b) of the Charter have been infringed. The only remedy available for a breach of

section 11(

b) of the Charter is a stay of proceedings. Therefore the charges will be stayed. Released October 20, 2014 ________________________ Justice Mara Greene