R. v. Kim, 2013 ONCJ 54

Citation: R. v. Kim , 2013 ONCJ 54 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — YONG HEE KIM Before Justice P. HARRIS Ruling on

Section 11(

b) Application Reasons for Judgment released on February 7 th , 2013 Mr. Tom Goddard ………………..............................................................Asst. Crown Attorney Ms. Donna Pledge…………………………………………….for the Defendant Yong Hee Kim HARRIS, P. J.: BACKGROUND [ 1 ] On October 6 th , 2011, the above-named Applicant was charged with “impaired operation of a motor vehicle” and “excess alcohol.” He has applied for a stay of proceedings pursuant to s. 11(

b) and s. 24(1) of the Charter on the grounds of unreasonable trial delay and this application was heard on January 25 th , 2013, in advance of the trial date of April 22, 2013. Applications under s. 11(

b) in advance of the trial date are now being filed pursuant to an administrative policy designed to salvage trial time for other cases should the application succeed. I am to treat this Application as if it were brought on the actual trial date of April 22, 2013. FACTS [ 2 ] The facts can be briefly stated: on October 6 th , the driver of a tractor-trailer heard a collision with his trailer while driving on the 401 Highway. He next observed the Applicant’s vehicle sliding down the highway on its roof.

After all vehicles had come to a stop, the Applicant was transported to the hospital where blood samples were taken resulting in a charge of “excess alcohol” in addition to a charge of “impaired operation.” CASE HISTORY [ 3 ] Following the charges of October 6 th , 2011, and an initial appearance on December 6 th , a trial date was set on January 4 th , 2012. Counsel have agreed that the two months prior to the date the trial was set are to be considered a neutral intake period.

Defence counsel indicated in a letter dated January 3rd, 2012 that her earliest availability for trial was February 9th, 2012. (See Application Record, Tab 3). One and a half days were set for trial dates on September 7 and 10, 2012. The Crown applied for an adjournment of the trial on August 28, 2012, on the grounds that the arresting officer was not available for either date. Defence counsel objected to an adjournment of the trial. She stated: “this matter has been going for some time and the trial date was set back in January, I believe, if I’m not mistaken.” “Mr.

Kim obviously wants to deal with the matter.” The Motions Judge granted the adjournment application and stated: “Well certainly, any delay would be obviously not attributable to the defence, if that is an item to be raised down the road.” [ 4 ] Defence counsel was asked to take the officer leave dates to the trial coordinator’s office at Old City Hall Courts in Toronto to set the earliest available trial dates. Counsel returned to Court and advised that the first trial date offered was April 15th, 2013, and because she was on vacation that week the next dates offered were April 22nd and 23rd.

The Motions Judge said “All right” and set the new trial dates and vacated the September, 2012 dates. This adjournment had the effect of extending the trial date a further 7 months, and 25 days from the date of the adjournment Motion. [ 5 ] As of the date set for trial, April 22nd, 2012, the defendant will theoretically have been before the Court for approximately 18.5 months which raises an overarching issue of reasonableness and calls for an inquiry. I propose to conduct an analysis of the specific periods that constitute the total delay:

6th October, 2011 ─ January 4, 2012: neutral intake period; 4th, January, 2012 ─ February 9th: defence waiver, not yet available for trial; 9th February, 2012 – August 28th, 2012: institutional delay (6 months, 19 days, approximately); 28th August, 2012 ─ 22nd March, 2013: Crown delay to a date in advance of trial date that would allow for a reasonableneutral preparation period for Crown and defence to be ready for trial – assessed as one month given nature of charges and civilian Crown witness (Crown delay: 6 months, 25 days, approximately); 22nd March, 2013 ― 22 April 2013: neutral trial preparation period; Total institutional and Crown delay: Feb. 9th, 2012 to March 22, 2013 = 13.5 months, approximately.

CHACTERIZING THE DELAY [6] In my view, the time counsel need to prepare for trial is properly assessed as approximately one (1) month prior to the trial datein respect to a relatively simple “impaired and excess alcohol” case. For experienced counsel, the fact that a toxicologist was to be calledas a witness to provide a blood-alcohol reading at the time of the driving, would not make the trial issues were any more complex.Consequently, the appropriate neutral period to allow a reasonable period of time for counsel to prepare for trial would commence onMarch 22, 2013 and end on the trial date April 22, 2013.

This calculation is an assumption designed to circumvent the practicaldisadvantages of determining precisely, what period in each case would be necessary and beneficial to both the Crown and defence totake all steps necessary to prepare for trial. Such an evidentiary foundation in an individual case is generally unavailable and beyond thereach of judicial fact-finding without seriously damaging the adversarial process.

One could well imagine how unseemly it would be fora Court to require the Crown and defence to give evidence as to precisely how long each would need to consult, analyze, research issuesand prepare witnesses for trial. In fact it would, in a very real sense, have the effect of putting the prosecution and defence on trial inrespect to the allocation of their resources, research systems, experience, efficiency and other idiosyncrasies and create additional trialdelay. [7] Since the Supreme Court ruling in R. v.

Morin (SCC), [1992], 1 S.C.R. 771, where that Court held that a twomonth neutral intake period was reasonable for a

summary conviction drinking and driving case, Canadian Courts have engaged in theexercise of applying these judicial inferences where there is, for all practical purposes, in the words of former U.S. Secretary of DefenceDonald Rumsfeld, an “unknowable unknown” or irremediable gap in the fabric of the evidence. For ease of reference, this approachshould be styled as a “Balanced and Reasonable Inference based on the application of Experience to the known Facts” ─ or B.R.I.E.F.(no irony intended in acronym): R. v.

Nguyen et al. 2012 ONCJ 512 (O.C.J.). [8] Beyond a careful consideration of the facts in this case and the application of some judicial experience, I have relied on caseauthority for the quantum of time attributable to a trial preparation neutral period. This is a component of counsel readiness (counselavailability and trial preparation) ─ that period after the trial date is set and the point at which the “parties are ready for trial and thesystem cannot accommodate them”: R. v. Morin, supra.

In order to establish a “preparation” neutral period for this case, I have relied onthe period accorded to trial preparation in R. v. Morin, supra. In Morin counsel had sought “the earliest date” for trial and was given adate that was just over thirteen months away. Sopinka J. held that this entire thirteen month period was not systemic or institutionaldelay.

He pointed out: “As counsel for the defence did not indicate a readiness for trial but merely a request forthe earliest trial date, it is somewhat unclear whether the case for the defence was as yet ready for trial …I am prepared to infer from the totality of the facts that an institutional delay of abouttwelve months was involved. This time period is the time from which the parties were ready for trial until the point at which the courts were able to accommodate this case.” (Emphasis added). Consequently, in this seminal case involving both drinking and driving charges and s. 11(

b) of the Charter, Sopinka J. allowed about onemonth as time for counsel to prepare for trial, after setting the trial date: See also R. v. Sharma, (1992), (SCC), 71C.C.C. (3d) 184 (S.C.C.); and R. v. Lahiry, 2011 ONSC 6780 (O.S.C.) to the effect that “Furthermore, in routine drinking and drivingcases, the amount of time needed to prepare for a short trial is not great.” at para. 31. [9] Counsel for the prosecution argues that where there is a civilian witness, as in this case, the court should allow a neutral period oftwo months to subpoena and prepare the witness. I disagree.

It is simply a matter of police policy and strategy whether a subpoena isprepared and served minutes after a trial date is set or six weeks before trial. One month is sufficient time to prepare a witness for trial.An accused fundamental Charter right to a timely trial should not be buffeted about by the prevailing winds of police policies on thetiming of subpoenas. In addition it was argued that the 1 month neutral preparation period should be backdated from the first dateoffered by trial coordinator, April 15th, 2013.

As I have already attributed one month, 5 days (Jan. 4th to Feb. 9th, 2012) to a trialreadiness waiver to the defence, which includes both trial availability and trial preparation (see Lahiry, paras. 27 to 29), it seemsimminently reasonable to conclude that the defence would only require a further three weeks for trial preparation (over and above theearlier five weeks) from March 22, 2013. (Defence Counsel was on vacation from April 15 to 22, 2013). PREJUDICE [10] The Applicant Yong Kim filed an affidavit and was cross-examined in respect to the “prejudice” aspect of the s. 11(

b) analysis.

In terms of the three protected interests of the accused referred to in R. v. Godin [2009] S.C.J. Nov. 26 at para. 30 ─ liberty, as regards topre-trial custody or bail conditions, security of the person, in the sense of being free from the stress and cloud of suspicion thataccompanies a criminal charge; and the right to make full answer and defence in so far as delay can prejudice the ability to lead evidence,cross-examine witness or otherwise to raise a defence ─ the Applicant expressed “security of the person” concerns.

He indicated in hisaffidavit at Tab 4 of the Application Record that he “suffered financially”, and additionally stated that he was “stressed and experiencingsleepless nights as a result of the delay in having this matter dealt with.” There was no medical evidence filed to establish that the latterdifficulties could be causally linked to the delay as opposed to the impact of the charges and the injuries sustained in the accident on hisstate of mind. [11] The key feature of the ‘prejudice analysis’ involves the distinction that was first articulated in R. v. Quereshi (ON CA), [2004] O.J.

No. 4711 (C.A.) to the effect that it is not the prejudice that flows from the fact of being charged, but ratherprejudice that is caused by the delay after being charged. As well, inherent prejudice may be inferred from the length of the delay. AsCromwell J. in R. v. Godin 2009 SCC 26 , [2009] S.C.J. No.26 (S.C.C.) pointed out: “it is reasonable to infer that the prolongedexposure to criminal proceedings resulting from delay gives rise to some prejudice”. Prejudice is interconnected with delay in the sensethat the longer the delay the more likely that inherent prejudice will be inferred.

The corollary to this proposition is that the absence ofmeaningful prejudice can lengthen the period of delay that is constitutionally tolerable: R. v. Morin, supra. (see also R. v. Seegmiller[2004] O.J. 5604 )C.A.). [12] Unfortunately there was a lack of specific detailed evidence in the form of medical or business documentation to prove thehealth effects purportedly suffered by Mr. Kim ─ on a balance of probabilities ─ nor was there any evidence forthcoming to establishthat the purported ‘health’ prejudice was caused by delay associated with the charges, as opposed to the charges themselves.

For theproof of actual ‘health effect’ prejudice one would expect more than an affidavit from the defendant: R. v. George 2006 MBCA 150, [2006] M.J. No. 450 (C.A.); R. v. Martin [200] B.C.J. No. 1515 (C.A.). In the end result, I am satisfied that the Applicant hassuffered a modest degree of actual prejudice to his security interest as a result of trial delay, particularly in terms of additional financialcosts. While it was difficult to ascertain with any precision the additional costs associated with delay from Mr.

Kim’s slow and largelyunresponsive testimony (he appeared to be suffering from some type of cognitive deficit), I am prepared to infer that there were modestadditional financial expenses associated with the extensive period of time the case was in the system, and the costs of appearing on theadjournment motion of August 28th, 2012. As well a modest degree of inherent prejudice can be inferred as a result of the generalstigma, frustrations, vexations and vicissitudes of delay in having these pending criminal accusations continuing over an extended periodof time.

ANALYSIS [13] Whether delay has been reasonable is assessed by considering the length of the delay, less any periods that have been waived bythe defence, and then by taking into account the length of the delay, the reasons for the delay (inherent time requirements, accused’sactions, Crown’s actions, limits on institutional resources), the prejudice to the accused and finally 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 bedealt with in the above-noted order. (

a) Length of Delay [14] As noted above the total delay to trial is approximately 18.5 months. The delay attributable to the Crown directly and by way ofinstitutional delay is 13.5 months. (

b) Waiver of time periods [15] There were no express waivers by the defence of any time period. The only implied waiver occurred between the dates January4th, 2012 and February 9th, 2012 as a result of defence counsel’s unavailability for trial until the February date. (

c) Reasons for the delay

(1) Inherent time requirements of the case and neutral periods [16] There are two inherent or neutral time calculations required in this case: (

i) the neutral intake period; (ii) and the delay requiredfor counsel availability and case preparation once the date for trial was set. [16] The neutral intake period of two months was agreed to by both counsel. The neutral period for trial preparation has beendetermined to be one month. The basis for such calculations can be found in

section s.11 (

b) jurisprudence which is particularlynoteworthy for its creativity in the introduction of remedial approaches that limit the evidence required so that jurists can make practicaldecisions in a limited period of time. Both above calculations represent judicially-sanctioned evidentiary shortcuts that are essentiallyinferences based on facts and experience as moulded by the form and structure of relevant case law.

(2) Actions of the accused [17] There were no waivers of time periods by the defence aside from the implied waiver to February 9th, 2012 for trial availability.

(3) Actions of the Crown

[18] The Crown sought an adjournment and is responsible for the delay from the adjournment date of August 28th until the neutraltrial preparation period commenced on March 22nd, 2013, a period of 6 months 25 days.

(4) Limits on Institutional Resources [19] The limits on institutional resources are well known in the Ontario Court of Justice, where even today, some twenty-two 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 require any further delay. The systemic delay in this case is theperiod from set-date to the date the Crown sought an adjournment less a neutral period in the form of counsel unavailability fromJanuary 4th to February 9th, 2012. This period of institutional delay, relatively speaking, was a reasonably good outcome and just 6months, 19 days. Then ― as noted in paragraph 18, above ― the wheels fell off.

(5) Other reasons for the delay [20] 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. [21] Total delay attributable to the Crown directly or pursuant to its responsibility for systemic or institutional delay: approximately13.5 months. (

d) Prejudice [22] In the end result, I am satisfied that the defendant has suffered a modest degree of actual prejudice to his security interest as aresult of trial delay in terms of financial costs. As well a modest degree of inherent prejudice can be inferred in respect the Applicant as aresult of the general vexations and vicissitudes of 13.5 months delay in having these pending criminal accusations concluded. BALANCING [23] 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.

It is well accepted that society’s interests in a trial on the merits increases as the seriousness ofthe charges increases. It must be acknowledged that the charges before the court are somewhat serious as all criminal charges are, but areless serious than some, proceeding as they have by

summary conviction. The exercise of balancing competing interests is described byMcLachlin J. in concurring reasons in R. v. Morin, supra: The task of a judge in deciding whether proceedings against the accused should be stayedis to balance the societal interest in that persons charged with offences are brought to trial against the accused's interest in prompt adjudication.

In the final analysis the judge, before stayingcharges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interestof society in bringing the accused to trial. [24] As noted above, the total delay directly attributable to the Crown or pursuant to its overall responsibility for systemic delay is13.5 months. This trial delay is well outside the Ascov/Morin guidelines of eight to ten months by some 3.5 months. I have determinedthat the actual and inherent prejudice to be inferred with respect to the Applicant should be characterized as modest.

It follows that theamount of delay that is tolerable in this case must be closer to the upper end of the range given the modest level of actual and inferredprejudice to the Applicant particularly having regard to the fact that there were no real trial delay impacts on his liberty or fair trialinterests (see R. v. G.(C.R.) (ON CA), [2005] O.J. No. 3764 (C.A.).

Presumably, this means that trial delaysomewhat closer to the upper end of the range of permissible delay would be tolerable in this case, and 13.5 months, delay depending onthe weigh accorded to certain elements of the analysis, may or may not be beyond constitutionally tolerable levels given the fact there isa modest degree of actual and inferred prejudice in this case. [25] While I recognize that in Morin, supra, the Court held that 13 months delay was constitutionally permissible in the absence ofany prejudice, the Supreme Court has made it clear many years ago that as time passed, it would be expected that trial delay wouldconform to the lower end of the guidelines: (R. v.

Sharma (1992) (SCC), 71 C.C.C. (3d) 184 (SCC)). This is a close anddifficult case. Bearing in mind the above assessment of the four delay considerations ― the length of the delay, waivers of time periods,the reasons for the delay, and the prejudice to the defendant arising from the delay ― I am satisfied on a balance of probabilities that thedefendant has established that his interests and society’s interest in a prompt trial outweigh the interests of society in a trial on the meritsin this case for the following reasons: (

a) The total trial delay of 13.5 months over the course of two trial dates is unacceptable by any measure, particularly some 21 years afterthe Supreme Court’s decisions in R. v. Morin and R. v. Sharma, by which time it was expected there would be demonstrable levels ofimprovement; (

b) There exists a modest level of actual and inferred prejudice to the Applicant as a result of the delay to the trial date of April 22, 2013; (

c) It is incomprehensible that the trial management system in this jurisdiction would fail to recognise a case in constitutional jeopardy under s. 11 (

b) of the Charter and on the adjournment date August 28th, 2012, heedlessly offer a trial date some 7 months, 25 days later(April 22, 2013), a period that was almost as long as the original trial date. We have been instructed in terms of binding appellateauthority that emergency measures have to be undertaken to salvage cases at risk. McPherson J.A. provided clear instructions as long agoas 2003 in R. v. R.M. (2003) (ON CA), 178 O.A.C. 243 (Ont.C.A): 5 In this case, there was simply not appropriate recognition by any of the participants that it was a case in jeopardy….. There was not aword from anyone about whether this proposed continuation date was appropriate in light of s. 11(

b) of the Charter.

9 However, what I do say is that it is incumbent on the presiding judge and both counsel to explicitly recognize a case that is in trouble and to discuss fully on the record how to deal with the problem. If an adjournment of a preliminary inquiry is required, there should not be a pro forma "what is the next available date" conversation. Instead, the time period that has already elapsed should be explicitly acknowledged on the record and there should be a frank discussion about how to solve the problem. The focus of the discussion should be on ways to speed up the proceeding. The presiding judge, the trial co-ordinator if necessary, and both counsel should attempt quite consciously to

schedule the continuation of the preliminary inquiry - not several months down the road, but at the earliest possible date . (Emphasis added). In this case Counsel for the Applicant expressly objected to the adjournment of the trial date and stated: “Mr. Kim obviously wants to deal with the matter.” The defendant could not be expected to do any more - on his own. In my view, this continuing carefree trial management practice in contravention of binding judicial authority is a case management style from which this court, being mindful of the importance of an accused’s constitutional rights, should disassociate itself. CONCLUSION I have concluded that the defendant’s

section 11(

b) rights have been breached and the application will therefore be allowed and the charges stayed pursuant to s. 24(1) of the Charter. Dated February 7 th , 2013. P. Harris J .