R. v. Rambharack, 2011 ONCJ 161

ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) HER MAJESTY THE QUEEN M. Mackett For the Crown AND S. Lyons SOOGRIM RAMBHARACK For the Defendant Heard: November 1, 2010 and March 1, 2011 Citation: R. v. Rambharack , 2011 ONCJ 161 REASONS for RULING (Charter S. 11(b)) M. GREEN, J.: A. INTRODUCTION [ 1 ] The defendant, Soogrim Rambharack, was charged with driving while impaired and while having a legally excessive blood alcohol concentration (BAC). The defendant was pulled over by the OPP a little after 9:30pm on June 29, 2008 while driving on the 401.

He appeared very intoxicated. His first BAC results, taken at approximately 11pm, registered 200; his second test results showed a BAC of 190. [ 2 ] As of today, March 31, 2011, some 33 months have passed since the defendant was first charged. The defendant accepts my earlier recitation of the events of June 29, 2008 as “factually correct”. He asserts, however, that his right to be tried within a reasonable time, as guaranteed by s. 11(

b) of the Charter, has been violated and that, as a result, the charges against him should be stayed as the appropriate remedy pursuant to s. 24(1) of the Charter. Crown counsel concedes that the overall period of delay is such as to require Charter scrutiny; however, she says much of the delay is attributable to the conduct of the defendant, that any periods properly attributable to the Crown or institutional factors fall within constitutionally graceful parameters, and, in any event, any prejudice suffered by the defendant is minimal.

As is true of all Charter claims, the burden of establishing a constitutional breach rests on the defendant on the civil standard of balance of probabilities. [ 3 ] While every s. 11(

b) application rests on its own unique facts, certain now-familiar patterns have emerged over the almost three decades since such claims were first advanced. Those said to contribute to the delay in the case before me contain some unusual features.

B. PROCEDURAL HISTORY [4] The defendant was charged on June 29, 2008. His first scheduled court appearance was approximately a month later, on July 31st;initial disclosure was provided at that time. Approximately three months of what Crown and defence both characterize as “intake”followed, with a trial date of July 3, 2009 (some eight months later) finally being fixed on October 30, 2008. That date was confirmedon December 18, 2008.

These eight months are clearly attributable to institutional factors, but defence counsel allows that this is the“normal” set-date-to-trial delay in Toronto for offences of this nature once all the parties are ready to proceed. Accordingly, nocomplaint is made of this period, standing alone. [5] The trial did not proceed on its first scheduled trial date. On June 23, 2009, the Crown applied to adjourn the pending trial. Anessential prosecution witness (about whom the defence had been requesting disclosure since the fall of 2008) had finally been contacted by the Crown and would not be available on July 3rd.

As a result, the trial would have to be postponed to accommodate the civilianwitness’ schedule. The defence did “not consent” to the adjournment, but it was granted nonetheless. The matter was sent back to assignment court to begin afresh on July 2nd – more than a year after the initiation of the defendant’s exposure to criminal liability. [6] The defendant had been represented since September 2008 by a para-legal.

The presiding justice on July 2, 2009 took the viewthat the defendant’s representative (hereafter, the defendant’s “agent”) could not act for his client unless approved by a judge following an open court judicial pre-trial hearing. As the Crown did not have a brief available, the matter was adjourned to July 9th to

schedule thehearing. [7] On that date the matter was further adjourned to July 24th for purposes of the pre-trial hearing into the agent’s status. This inquirysomehow consumed most of the next three months. One of the concerns crystallized about penal amendments to the Criminal Code thateffectively prevented anyone other than a lawyer from representing an accused charged with “super

summary” offences such as those faced by the defendant. Crown counsel took the position on July 28th that the defendant was not precluded from being represented by anagent as the alleged offences occurred before the date on which the amendments came into force. [8] The hearing judge accepted this position but then redirected the inquiry into the agent’s qualifications or competence – in effect, a“Romanowicz hearing”: R. v. Romanowicz (1999), (ON CA), 138 C.C.C. (3d) 225 (Ont. C.A.). Prior to working as apara-legal, the defendant’s agent had been a lawyer. He had been disbarred for unethical conduct.

His status as a para-legal was thenunder review by the Law Society although the agent maintained that, absent an adverse ruling, his capacity to act as a para-legal wasgrandfathered by Law Society rules and practice. The defendant affirmed his confidence in his agent and endeavoured to move thematter forward, but the inquiry was repeatedly adjourned by the court to await the Law Society’s determination. A trial date of October 22, 2009 was fixed on August 4th, without resolving the question of the agent’s competency to represent the defendant.

Finally, on October 19th – three days before the defendant’s second scheduled trial date and without a ruling from the Law Society – the judgeconducting the inquiry disqualified the agent from representing the defendant at his trial. [9] The defendant filed a notice respecting his s. 11(

b) claim on October 21, 2009. On the next day (the defendant’s second scheduled trial date), and after being apprised of the October 19th ruling as to the agent’s disqualification, the presiding judgepronounced “that the trial cannot proceed today”. He then directed that the matter return to assignment court about two weeks later tofix a new trial date. At no time was the defendant asked whether he wished to proceed without counsel.

Although the defence sought an earlier date, the matter was adjourned to November 2nd, at the Crown’s request, to set a new trial date. [10] The defendant requested three weeks to retain counsel at his return appearance in assignment court on November 2, 2009. His request was granted and he had retained counsel by the return date, November 30th. Defence counsel provided prospective trial dates but the matter was further adjourned, to December 7th, as there was no Crown brief in court. Duty counsel was armed with a letter from defence counsel, Ms.

Abraham, on that day indicating her availability on more than a hundred different juridical dates from March 22nd through October 15th of 2010. Duty counsel told the court that the defendant’s counsel “wants to set a trial date”. She continued: “The last date she has available is October 15th and I’ve called her [counsel’s] office … just to indicate that that probably would not be possible”. In any event, the matter was again adjourned, this time to December 11th, as a result of the Crown brief again not beingavailable. [11] In the interim, and as set out in Ms.

Abraham’s uncontradicted affidavit, “Duty Counsel [advised] that my dates wereunacceptable and I should provide dates starting in November, 2010”. Accordingly, defence counsel provided duty counsel with afurther letter as to her availability which read: “counsel is giving trial dates November 2010 onwards as instructed: any date isavailable. Please state on record that there is no waiver of s. 11(

b) for client”. In the result, November 1, 2010 – more than 28 monthsafter the defendant was first charged – was fixed on December 11, 2009 for the defendant’s third scheduled trial date. The TrialVerification Form filed that day indicates that the court and Crown were available to proceed with the trial as early as March 2010. [12] Counsel served notice of the defendant’s s. 11(

b) claim, along with a supporting affidavit, a factum (if skeletal) and a few of therelevant transcripts before November 1, 2010. The defendant could not afford to order production of the many missing transcripts. Thefiled record pertaining to prior appearances was clearly inadequate to properly assess a claim of unreasonable delay, particularly asCrown counsel fairly conceded that the length of the global delay was such as to mandate a s. 11(

b) inquiry. Following his arraignment,and with the agreement of both counsel, the defendant accepted as “substantially correct” the facts grounding the two offences withwhich he was charged, and which I have earlier recited, while preserving his claim for constitutional relief. I then ordered production ofthe missing transcripts and adjourned the matter to January 12, 2011 for the s. 11(

b) hearing. The defendant, in turn, waived his s. 11(b)rights going forward. In effect, and by agreement of both parties, the concluding date for the calculation of the duration of anyunreasonable delay was November 1, 2010.

[13] Regrettably, a number of significant transcripts were still unavailable on the January 12th return date. Accordingly, the matterwas further adjourned until March 1, 2011, at which time the defendant was examined on his affidavit and the motion was then fullyargued on a complete record. Honouring his earlier agreement, the defence does not advance the court reporters’ failure to produce themissing transcripts in a timely manner, and the further adjournment this occasioned, as another instance of institutional delay. C. PREJUDICE [14] The defendant has no prior criminal record.

He works as a cleaner and janitor at a seniors’ centre and earns approximately$40,000 a year. He is separated but provides for his three children through child support. As he was represented by an agent throughmuch of the proceedings, and then by counsel whose dates were made available to the court by way of letters following that agent’sdisqualification, the defendant personally attended every one of his scheduled court appearances. Including today, this amounts to some24 separate appearances.

On each occasion the defendant had to secure leave from his work and, as result, was not paid for the days hewas required to attend court. His many absences jeopardized his employment although, in the end, he was able to maintain his position. He paid his original agent “up front” and none of this retainer was ever returned to him. The expense of retaining counsel when hisagent was disqualified rendered him too impecunious to order all of the necessary transcripts.

He has had to surrender his car as he couldno longer afford to repair or maintain it. [15] As a result of the charges and the attendant protraction of the case, the defendant says that his sleep has been adversely affected;further, the delay has been emotionally stressful. Although he realized in the course of the Romanowicz hearing appearances that thecourt had concerns about his representative’s competency, he hoped that his agent would ultimately be permitted to act for him; in anyevent, he had no funds to retain another agent or counsel as the agent “had all [his] money”.

The defendant’s “hope” in his agent’sredemption, although ultimately dashed, was not entirely vain or unfounded: the Law Society appears to have been seriously consideringthe agent’s application (given the time it was taking to make its determination) and the judge conducting the competency inquiry lentcredence to this

interpretation by adjourning the matter on three occasions to await the Society’s decision. D. THE ANALYTICAL FRAMEWORK [16]

Section 11(

b) of the Charter guarantees every person charged with an offence the right to be tried within a reasonable time. Theprimary interests protected by this provision are those of the defendant: security of the person, liberty and fair trial rights. The interestsof society (including ensuring that those charged with breaking the law are not only tried on the merits but quickly and fairly) are also ofconcern: R. v. Askov (1990), (SCC), 59 C.C.C. (3d) 449 (S.C.C.), at 474; R. v. Qureshi (2005), 128 C.C.C. (3d) 453(Ont. C.A.), at 458, and R. v.

Godin, [2009] 2 S.C.R. 2, at para. 40. [17] The factors that must be considered in any unreasonable delay analysis have been settled since R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.), at 13: 1. length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including: (

a) inherent time requirements of the case; (

b) actions of the defendant; (

c) actions of the Crown; (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the defendant. [18]

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). As summarized by the Supreme Court in R. v. Godin, supra, at para. 18, 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. (See, also, Morin, supra, at p. 30, per McLachlin, J., as she then was, concurring.) The adjudication of s. 11(

b) claims typically rests, ashere, on the legal characterization and assignment of particular periods of delay. [19] As with all Charter claims, the defendant bears the burden of establishing a s. 11(

b) violation. No mathematical formuladetermines the reasonableness of pre-trial delay, but some assistance may be found in the administrative or institutional guidelines set outby the Supreme Court in Morin, at p. 21. That for permissible institutional or systemic delay in the case, as here, of a provincial courttrial is eight to ten months. (See also R. v. G.(C.R.), (2005), (ON CA), 77 O.R.(3d) 308 (C.A.), at 315.) Asrepeatedly emphasized, this guideline is not a fixed limitation period: there is some elasticity in its application depending on a variety offactors. However, the normative inclination since Morin is in the direction of reduced countenance of institutional delay: see, for

example, R. v. Stephens, [2007] O.J. No. 3500 (S.C.J.), at para. 67, and R. v. Sharma (1992), (SCC), 71 C.C.C. (3d) 184(S.C.C.), at 194. [20] Finally, a stay of proceedings is the only appropriate remedy once the s. 11(

b) threshold of “unreasonable delay” is crossed: R. v.Thomson, 2009 ONCA 771, paras. 9 and 10. E. APPLYING THE ANALYTICAL FRAMEWORK (

a) Length of the Global Delay [21] Just over 28 months passed between the defendant being arrested and charged on June 28, 2008 and his third trial date, November1, 2010, the date on which, for s. 11(

b) purposes, both parties agree the clock stops. Given defence counsel’s concessions, these 28months are the cognizable timespan for s. 11(

b) consideration. It is also about three times as long as the settled guideline foruncomplicated provincial court trials, such as the one immediately before me. (

b) Waiver [22] The classic definition of “waiver” in the context of claims of unreasonable delay is that set out in Morin, at p. 15: … in order for an accused to waive his or her rights under s. 11(b), such waiver must be clear and unequivocal, with full knowledge ofthe rights the procedure was enacted to protect and of the effect that waiver will have on those rights … . Waiver can be explicit orimplicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringent test for waiver set out above. … Waiver requires advertence to the act of release rather than mere inadvertence.

If the mind of the accused or his or her counsel is notturned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. On my view of the record, there has been no clear, unequivocal, advertent waiver of the defendant’s right to be tried within a reasonabletime up to the date of the third trial. Some of his conduct “may”, as said in Morin, supra, “be taken into account under the factor ‘actionsof the accused’ [as discussed below] but it is not waiver”. (

c) Reasons for the Delay [23] Explanations for the delay that attracts s. 11(

b) scrutiny are encompassed by the rubric “reasons for the delay”. The inquiry herefocuses on determining the cause of or responsibility for each discrete interval for purposes of attribution and legal characterizationwithin the s. 11(

b) calculus. Code J. recently addressed this sometime complex process in R. v. Richards, 2010 ONSC 6202. “Reasonsfor delay”, he explained at para. 15: … simply involves an objective analysis of each period of delay in order to determine its cause. … Having determined the causeof the individual period of delay, this factor then assigns a weight to it. There are some delays that are said to “weigh against theCrown”, some delays are said to “weigh against the defence” and some delays are said to be “neutral”.

The simple point that this factorseeks to make is that delays caused by the accused’s own actions “will justify” an otherwise unreasonable delay, delays caused by theCrown or by inadequate resources “cannot be relied upon …to explain away delay that is otherwise unreasonable”, and delay due to theinherent requirements of the case “is neutral and does not count against the Crown or the accused”. See: Askov, supra, at pp. 477-481and 483; Morin, supra at pp. 16-23; R. v. MacDougall (1998), (SCC), 128 C.C.C. (3d) 483 at p. 500 (S.C.C.). (

i) Inherent Time Requirements of the Case [24] All cases have certain inherent time requirements that contribute to delay. These requirements almost universally include theretention of counsel, administrative paperwork and the preparation and provision of disclosure. These essential tasks typically occur atthe front or loading end of any case. As such, they are styled “intake” requirements and are treated as “neutral” for purposes of s. 11(b)delay calculation. Occasionally events occur during the course of the proceedings that are intrinsic to the case and for which no partycan fairly be held responsible.

For example, the sudden illness of a crucial witness on the eve of trial is an unanticipated vagary that willalmost inevitably generate delay. Such contingencies are recognized as inherent features of the litigation and, for that reason, are alsotreated as of neutral value: R. v. A.J.W. (2009), 2009 ONCA 661 , 257 O.A.C. 11, at para. 35; R. v. Hoffner, (ON SC), [2005] O.J. No. 3862 (S.C.J.), at para. 41. [25] The intake period here extends from the defendant’s arrest on June 29, 2008 to October 30, 2008, some four months later, whenthe trial date of October 30, 2009 was finally fixed.

This is about twice as long as is conventionally viewed as reasonable for anuncomplicated case such as the one before me. Undoubtedly this segment can be parsed more finely for purposes of s. 11(

b) attribution. However, as both parties are content to treat it as “intake” in the circumstances of this case, I do not intend to disturb their sharedcharacterization. [26] In my view, the interval consumed by the inquiry into the status and competence of the defendant’s agent is also properlyconsidered part of the inherent requirement of the case. I do not doubt that the defendant retained his agent in good faith and that hewished to proceed to trial with the agent’s representation.

Similarly, the Crown did not raise the issue of agent’s fitness and sought toassure the court that it was satisfied that Criminal Code amendments did not have retrospective effect and, thus, did not preclude theagent acting for the defendant. However, it was only right that the presiding justice of the peace refer the matter to a judge to determinethe agent’s status and competency. These were both matters that potentially impacted on the propriety and integrity of the process andwhich, if handled incorrectly, could well have embarrassed the administration of justice and impaired the validity of any verdict.

Thejudge who conducted the Ramanowicz inquiry adjourned the matter on several occasions to await a Law Society ruling. These remands,

as I read the record, were intended to accommodate the defendant’s interest in maintaining his agent’s representation. The period consumed by this inquiry extends, on my reckoning, from July 2, 2009 (when the issue was first raised in assignment court by the presiding justice) until the second scheduled trial date of October 22, 2009, when the trial was aborted because of the ruling, some three days earlier, disqualifying the defendant’s agent.

These almost four months are properly characterized as neutral in these circumstances. [ 27 ] So too, in my view, are the following five weeks (from October 22 to November 30, 2009), during which the defendant returned to assignment court, quite properly requested an opportunity to retain counsel, and then re-attended to fix his third trial date. This stage was akin to the intake that follows the order of a new trial.

Combined with both that period dedicated to judicially screening the defendant’s agent and the initial intake, the time requirements inherent to this particular case amount to some nine months of s. 11(

b) neutrality. [ 28 ] (I note, parenthetically, two concerns. First, upon finally disqualifying the defendant’s agent, the judge who conducted the Romanowicz hearing commented that the delay flowing from the failure to retain proper representation was to be borne by the defendant. In my view, such determinations are within the exclusive province of the trial judge and should be based on a complete record; accordingly, and with the greatest of respect, I disregard that pronouncement.

Second, I was initially perturbed that no inquiry was made of the defendant on his second trial date as to whether he wished to proceed without counsel and that, as a result, the delay that followed was the product a peremptory adjournment. However, as the defendant made clear in his testimony before me that he had no wish to proceed to trial without representation.

Accordingly, I see no prejudice resulting from the vacating of his second trial date and the immediate adjournment of his proceedings to allow him to retain counsel.) (ii) Actions of the Accused [ 29 ] The defendant retained an agent with relative dispatch after his first court appearance. Until his agent was disqualified (and even after, once he retained counsel), he consistently pressed to have his trial, opposed the first Crown adjournment, never applied to adjourn the matter, gave notice of his s. 11(

b) application as early as October 2009, and retained counsel within the month afforded him when his agent was disqualified and the matter sent back to assignment court to fix a new trial date. There is nothing about the defendant’s actions that contributed to the delay – other than his naïve and unfortunate choice of a compromised agent rather than a qualified lawyer.

As I have already explained, the consequences of this good faith error, in the circumstances of this case, are properly considered as part of its inherent time requirements rather than as a product the defendant’s conduct. (iii) Actions of the Crown [ 30 ] The defence had requested disclosure of a “civilian” witness’ evidence since the fall of 2008.

The Crown fixed the initial date (July 3, 2009) without consulting this witness and, in the weeks immediately before trial, realized that the witness (whose potential evidence had still not been disclosed to the defence) was “essential” and, as a result, sought and secured an adjournment – over defence objections – when it transpired that the witness would be unavailable on the scheduled trial date. In the ordinary course, the interval between this adjournment and the next trial date would be attributable to the prosecution, as Crown counsel here acknowledges.

However, in the peculiar circumstances of this prosecution, and as I have already found, that delay (and, indeed, the period that followed until a new – third – trial date was fixed) is more properly credited to the inherent time requirements of the case. [ 31 ] The Crown brought its adjournment application on June 23, 2009, approximately a week and half before the first scheduled trial date. Upon its application being granted, the matter was sent back to assignment court on July 2 nd (a day prior to that originally scheduled for the first trial) to set a new trial date.

It was on this occasion that the presiding justice – not the Crown – raised the issue of the agent’s status to act for the defendant. The matter was adjourned another week as the Crown did not have the brief in court and on that return date, July 9 th , the matter was fixed for what amounted to a Romanowicz hearing before a judge. As I have earlier held, the competency and qualifications of the defendant’s agent were matters that went to the integrity of the process and any verdict that might result and, accordingly, were intrinsic to the proceedings.

Although it seems almost trivial in the great scheme of things, the week between July 2 nd and 9 th is properly charged to the Crown for failing to have its brief in court on the first of these days and thus causing a week’s delay before the status hearing could be scheduled. [ 32 ] The second Crown-generated delay is grounded in the scheduling of the third trial date. The defendant had retained counsel by November 30, 2009 and was prepared to fix a date for his trial. The matter was adjourned because the Crown again did not have its brief in court.

The same thing happened on the next appearance, December 7 th , leading to a further adjournment to December 11 th , when a third trial date was finally set.

This approximately week and half is properly charged to the Crown which, given the accumulative delay to that point, should have been prepared to fix a trial date at the earliest opportunity. [ 33 ] In total, then, some 2½ weeks of delay are due to actions of the Crown. (iv) Limits on Institutional Resources [ 34 ] Counsel are agreed that the just-over eight months between October 30, 2008 (when the first trial date was set) and July 3, 2009 (when that trial was scheduled to commence) are readily assigned to institutional or systemic factors.

The more vexing question concerns the proper characterization of the almost-eleven months between December 11, 2009 (when the third trial date was fixed) and November 1, 2010 (when that third trial was to begin and which date, as counsel have agreed, serves as the terminal point for s. 11(

b) calculations in this case). If viewed as purely institutional and then added to the eight months of systemic delay until the first trial date, there is an almost irrebuttable inference that the defendant’s s. 11(

b) rights have been breached. If, on the other hand, the defence acquiesced to this lengthy delay, a very different conclusion may follow. Given the somewhat unusual circumstances that attend the scheduling of the third trial date, it is my view that it is best addressed under the residual category of explanations for the protraction of proceedings – that of “other reasons for delay” – to which I now turn. (

v) Other Reasons for Delay

[35] As earlier noted, the defendant had retained counsel by November 30, 2009. Trial dates available to the defence were providedduty counsel but the matter was adjourned as the Crown did not have its brief in court. On the return date duty counsel, referring to aletter from the defendant’s then counsel, Ms. Abraham, indicated that “she wants to set a trial date”. The many dates she provided, asearlier canvassed, extended from March through October of 2010. Again the Crown did not have a brief available and the matter was further adjourned to December 11th.

More puzzling, duty counsel noted that the “last date” proposed by counsel was October 15th andthat she, duty counsel, had already taken it upon herself to call Ms. Abraham’s office to advise that the dates she had proposed “wouldprobably not be possible” and, as affirmed in Ms. Abraham’s unchallenged affidavit, that she “should provide dates starting in November, 2010”. As a result, on the return date of December 11th duty counsel bore a letter from Ms. Abraham suggesting “any date”from November onwards, while making clear that “there is no waiver of 11(b)”.

The trial co-ordinator’s office had trial dates availableas early as March 2010, and the Crown was amenable to this time-frame. However, as a result of the collective amnesia affecting theoffices of the Crown, duty counsel and the court, the third trial date was set down for November 1, 2010 (some 11 months distant) toostensibly accommodate Ms. Abraham’s calendar. [36] There is something almost perverse about the manner in which the defendant’s third trial date was fixed. He retained MsAbraham as counsel. Twice her efforts to fix a trial date were thwarted by the Crown’s failure to have its brief in court.

She providedmany dozens of dates commencing as early as three months hence, in March 2010, but was mistakenly advised that her dates werepremature. Following this advice, she then proposed the very earliest dates suggested by duty counsel, beginning November 1, 2010,while making clear – through express invocation of her client’s s. 11(

b) rights – that the defendant was not content with the pace of thelitigation. And, sure enough, November 1, 2010 was scheduled for the defendant’s third trial date. This could all be read as a comedyor errors but for the fact that the defendant ends up the butt of the joke. [37] The defence initially proposed and was prepared to fix a date in March 2010. The court was able to provide trial dates in March,although not earlier.

In my view, the appropriate period of institutional delay referable to the third trial is that from December 11, 2009(when the trial date was fixed) to mid-March 2010 (when the parties and the court could all accommodate the defendant’s trial) – aninterval of some three months.

I treat the period from mid-March to the trial date of November 1, 2010 as of neutral value, a product oferror and confusion for which no party can fairly be held responsible. [38] In the result, the non-neutral delay subject to Charter scrutiny comprehends the eight months of institutional delay related to thefirst trial, the three months referable to the third trial, and the approximately 2½ weeks attributable to the conduct of the Crown.

Theglobal delay thus amounts to some 11½ months, a period in excess of the Supreme Court guideline for simple, as here, provincial courttrials but not so extravagantly so as to necessarily compel a stay of proceedings. That determination depends on the assessment ofprejudice and, of course, the ultimate balancing of interests. (

d) Prejudice [39] While the delay that here attracts Charter scrutiny transcends the settled, if somewhat elastic, ceiling for similar cases, thedeviation from that norm is not extreme. Further, as I have earlier observed, the guidelines are not limitation periods nor are they to bemechanically applied. Indeed, a twelve-month delay was held not unreasonable in Morin.

The Supreme Court’s approach to prejudice inthat case is particularly instructive in the immediate context as the court there found, at p. 28, that the defendant “led no evidence ofprejudice” and “was content with the pace with which things were proceeding”. In dicta directly relevant to the case at bar, the Court ofAppeal in R. v. Campagnaro, [2005] O.J. No. 4880, at para. 4, made clear that, Where the institutional delay is on the edge of the constitutionally tolerable, the issue of prejudice will be central to the outcome of the s.11(

b) analysis. [40] Significantly, I have found that the defendant neither waived nor materially contributed to any delay. Unlike many other cases,he did not endeavour, as put in R. v. Askov, supra, at p. 276, to “transform” his s. 11(

b) right from “a protective shield to an offensiveweapon”. While much of the total delay has been “neutralized” for purposes of the analysis at hand, the distress to which the defendantwas exposed during the protraction of the charges was not suspended during those periods when the s. 11(

b) clock stopped ticking. Accordingly, an assessment of prejudice must look to the entire delay, or at least those 28 months that passed between the defendant’sarrest and his third trial date. [41] The defendant here led evidence of specific prejudice. He has attended court on some two-dozen occasions. He has suffered aloss of income with each attendance and his repeated court-related absences have nearly cost him his employment. He supports his threechildren on a very modest income.

His legal expenses (including those related to retaining an agent and then, after the agent’sdisqualification, Ms Abraham and, more recently, another counsel to whom carriage of the defence was transferred) has created suchfinancial pressure that he has had to sell his car. The prolongation of the proceedings has also adversely affected his stress level and hissleep. [42] Unduly long proceedings almost inevitably give rise to inferred prejudice, particularly in regard to the security of the person.

Individuals such as the defendant who have never previously found themselves at the sharp end of the criminal justice system almostcertainly experience stress and anxiety as a result of being charged. Over time – and especially, as here, a very long time – theseemotions become an ongoing and often consuming burden, one as properly attributable to the increasing delay as to the chargesthemselves. As said by Hill J. in R. v. Pusic (1996), (ON SC), 30 O.R. (3d) 692, at 720, the “inference of prejudicefrom a very long delay becomes nearly irrebuttable”. (See, also, R. v. Askov, supra, at pp. 482-3; R. v.

Morin, supra, at p. 23; R. v.Godin, supra, at paras. 31 and 34; R. v. Smith (1989), (SCC), 52 C.C.C. (3d) 97 (S.C.C.), at 111.) F. BALANCING [43] The defendant was first charged 33 months ago. The effective delay for s. 11(

b) analysis (that extending until his third trial date)is some 28 months. He did not waive nor is he otherwise responsible for any of this inordinate delay. Much of it is attributable to the

inherent time requirements of the case, including judicial efforts to maintain the integrity of the process. However, unlike the calculation of those periods that compose the delay subject to s. 11(

b) review, the clock did not stop on the defendant’s mounting prejudice, both actual and inferred, during those intervals I have characterized as of neutral value. The remainder of the delay – 11½ months – falls to institutional factors and Crown conduct. The length of this delay hovers close to the tolerable limit but, in my view, tips into the realm of unreasonableness by virtue of the prejudice endured by the defendant. [ 44 ] I am, of course, well aware of the gravity of the offences that are here charged and of the strong public interest in determining drinking and driving cases on their merits. I note that the Crown has elected to proceed by way of

summary conviction and that, even upon consideration of the aggravating features of this case, there is very little chance that the disposition following a conviction would include a period of incarceration. Offences such as the ones with which the defendant is charged are obviously matters of general societal concern given the substantial and needless injury and death that result from this type of misconduct. I factor these concerns into the ultimate balancing. Nonetheless, in view of the length of the delay, the interests protected by s. 11(

b) and, ultimately, the prejudice experienced by the defendant over the breadth of these proceedings, I find that the defendant’s right to be tried within a reasonable time has been infringed. [ 45 ] Given this determination, the only just and appropriate remedy in such circumstance, as dictated by s. 24(1) of the Charter, is a judicial stay of the proceedings. G. CONCLUSION [ 46 ] The defendant’s constitutionally protected right to be tried within a reasonable time has been violated. Accordingly, the charges against him are ordered stayed. Released on March 31, 2011 __________________________ Justice Melvyn Green