R. v. Matadin, 2011 ONCJ 512

COURT FILE No.: Toronto Region Citation: R. v. Matadin, 2011 ONCJ 512 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) L. Will, ) for the Crown ) — AND — ) ) ) BHOJNARAINE MATADIN ) P. Lindsay, ) for the accused ) ) ) ) HEARD: August 18, October 4, 2011 FELDMAN J.: [1] Mr. Matadin has an October 31, 2011 date for trial on charges of Operation Impaired and Blow Over 80. On August 18,2011 he brought on application under s. 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings on the basis thathis s. 11(

b) right to be tried within a reasonable time had been infringed. Chronology [2] Mr. Matadin was charged on September 3, 2010. He was not brought to court by an Information until October 21, onemonth and 18 days after his arrest. Counsel was retained prior to the Applicant’s first appearance.

Earlier on September 16, Mr.Lindsay, counsel for the applicant, wrote to the Crown requesting both basic and additional disclosure (see Application Record, tab 2)that he renewed on October 21, immediately after his attendance in court. [3] On November 1, counsel appeared by designation, as he did thereafter until a date was set for trial. Paper disclosure wasprovided that day. The breathalyser DVD, specifically requested by counsel, was not available, as was the case on November 18.

Itwas, however, provided on November 29, when both a Crown and judicial pre-trial were held, in addition to one-day trial date being setfor October 31. [4] The total intake period was 13 weeks. The time to get to trial from the point at which the parties were ready was 11months. [5] A date of April 28 was also fixed, at the behest of the Crown, to determine if any earlier dates were available by attritionof other trials. There was not. Legal Principles [6]

Section 11(

b) of the Charter provides that any person charged with an offence has the right to be tried within areasonable time. The primary purpose of this

section is to protect the individual rights of those charged. This right contemplates securityof the person, as well as their liberty and fair trial interests. This

section also weighs in the balance society’s secondary interest inensuring that accused persons are tried promptly and fairly on the merits: R. v. Morin, (SCC), [1992] 1 S.C.R. 771; R.v. Qureshi (2004), (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.). [7] The principles to be applied in a stay application for delay are well known and are set out in R. v.

Morin, supra, whichdirects the trial court to consider four factors: length of the delay, reasons for the delay, waiver of time periods and prejudice. [8] The reasonableness of any delay is determined by a balancing of these four factors, taking into account the totality ofcircumstances, including any explanations for delay. The burden of proof is on the applicant to establish on a balance of probabilitiesthat his or her right to be tried within a reasonable time was infringed.

Analysis Operative Delay [9] The operative delay here from arrest until trial was approximately 14 months, warranting, as conceded by the Crown, aninquiry into its reasonableness. Waiver [10] The Crown does not dispute that there were no express or implied waivers by the applicant of his rights under this section. In fact, as noted earlier, the applicant attended some time after the trial date was set to determine if an earlier date was available. Inherent Time Requirements

[11] The intake period is considered neutral time except for any portion that is unnecessarily prolonged. For a relativelyuncomplicated case, it is the experience in this jurisdiction that a time frame of 2-3 months to complete disclosure and conduct a judicialpre-trial is acceptable and is deducted from the total length of the delay: R. v. McCourt, [2005] O.J. No. 6023 (Ont. C.J.); R. v. Wilson,[2005] O.J. No. 152 (Ont. C.J.); R. v. Sabapathipillai, [2010] O.J. No. 4172 (Ont. C.J.). [12] Mr. Lindsay asks, not without some basis, why it was necessary to take 1½ months to get from charge to first appearance.

He makes reference to a recommendation in a Criminal Case Management Protocol, prepared in September 2004 by the Criminal JusticeSteering Committee, that the first appearance be no later than four weeks from the date of arrest (see Application Record, tab 10). Hepoints out, as well, that in R. v. Singh,[2004] O.J.

No. 3839 (Ont.C.J.), Shaw J was of the view that two weeks should suffice to get thedefendant to court, but counsel suggests, not unreasonably, that if more time is required, perhaps in light of limited resources, then atleast basic disclosure, including the DVD, should then be available. [13] I note the comments of Justice Shaw that a delay of one month to bring Mr. Singh to court, given the straightforward anduncomplicated nature of his charges, the fact he had no criminal record and was likely unfamiliar with the operations of the criminaljustice system, was excessive and inevitably stressful for him. In R. v.

Salehji, [2010] O.J. No. 4889, Justice Hryn followed Singh andattributed the time outside two weeks to institutional delay. There is merit in these conclusions. [14] Mr. Lindsay says counsel’s review of the DVD is necessary to permit the defendant to make an informed decision abouthis or her plea and to assist in properly estimating trial time. He suggests any delay in this regard falls to the prosecution.

Here, he relieson a 2001 Memorandum from the Director of Crown Operations, Toronto Region directing that police make available copies of DVDs inadvance of an accused’s first appearance (see Application Record, tab 10). He also makes reference to a statement in the Criminal CaseManagement Protocol that it is critical that disclosure of video evidence be provided to the defendant at the first appearance: see R. v.Tefera, [2010] O.J. No. 5016 (Ont. C.J.).

He asks why the Crown gets a pass when it fails to follow its own standards. [15] There is support for this position in the authorities regarding disclosure of the DVD. In R. v. Maxwell, [2006] O.J. No.4604 (Ont. C.J.), Lipson J described this evidence as essential, requiring timely disclosure in order to allow the defendant to make aninformed choice as to how best to proceed. Importantly, in this regard, Wilson J. in R. v. Godfrey, [2005] O.J. No. 2597 (Ont.

S.C.), heldthat early disclosure of the videotape “should be routine and the norm in routine cases”, upholding the reasons of the trial judge on adelay application that in uncomplicated cases there is no good reason why “video disclosure is not routinely provided at or very near tothe accused’s first appearance in court”. [16] I agree with these sentiments, mindful that theory and principle often clash with the reality of limited resources and thejudicial view in this jurisdiction that 2-3 months for intake is tolerable.

Nonetheless, it is difficult to accept that an accused cannot bebrought before the court within a more reasonable time than 6 weeks to begin the process leading to a speedy trial. It is necessary thatthis effort be made. [17] As well, material evidence that informs the nature and length of the proceedings need be disclosed early on. I have notheard any reason why the DVD is unable to be made available at or near the first appearance, a standard encouraged by Crownmanagement itself. The delay here in this regard was unwarranted. [18] In this case, counsel was retained prior to the first appearance.

I am told this is not a complicated case that requires alengthy intake period. At the same time, I acknowledge that Mr. Lindsay required additional technical disclosure that added to theprosecution’s disclosure burden. Still, in light of the issues raised on intake, I am of the view that the parties ought to have been ready tofix a date for trial within about 2 months. I would attribute one month of delay to the Crown. Limits on Institutional Resources [19] The period of institutional delay runs from the time both parties are ready for trial, but the system cannot accommodatethem.

Here, the date was set 11 months after the parties were prepared to set a date. This falls outside the 8 to 10 month guidelinerecommended in Morin. It is significant that in Morin, the court noted the government’s constitutional obligation to commit sufficientresources to prevent unreasonable delay and asserted that there was a point in time at which the court would no longer tolerate delaybased on the plea of inadequate resources. [20] Other courts have expressed similar sentiments and indicated their impatience with the lack of progress in reducing delay: see R. v. Jaramillo, [2002] O.J. No. 4435 (Ont.

C.J.); R. v. Barnes, [2003] O.J. No. 3217 (Ont. C.J.); R. v. Meisner, [2003] O.J. No. 1948(Ont. S.C.); R. v. McCourt, [2005] O.J. No. 6023 (Ont. C.J.); R. v. Tricker, [2008] O.J. No. 4147 (Ont. C.J.); R. v. Vrbanic, [2009] O.J.No. 988 (Ont.C.J.). [21] Rosenberg J. A. found no reason to depart from the guidelines in R. v. Kovacs-Tatar, (ON CA), [2004]O.J. No. 4756 (Ont. C.A.), but went on to caution that they should not be given the force of “a judicially developed limitation period”. [22] The Supreme Court has more recently confirmed the judicial guideline of 8 to 10 months for this court in R. v.

Godin, 2009SCC 26 , [2009] S.C.J. No. 26, but also recognized that these guidelines were not limitation periods and that “deviations ofseveral months in either direction can be justified by the presence or absence of prejudice”: see also Morin, at p. 28. [23] The institutional delay with which we are dealing here is 12 months, given the additional month I have attributed to theCrown. In light of the guideline, this is close to the line of unreasonable delay. In this regard, the Ontario Court of Appeal said in R. v.Campagnaro, [2005] O.J.

No. 4880: “Where the institutional delay is on the edge of the constitutionally tolerable, the issue of prejudice will be central to the outcome of thes. 11(

b) analysis. Prejudice can only be assessed on a case-by-case basis. We stress the need for evidentiary support for allegations ofprejudice made by the applicant.” Prejudice

[24] Prejudice is central to the application of the Morin factors because the primary purpose of s. 11(

b) is to protect the rights ofthe accused to security of the person, liberty and a fair trial. In this case, Mr. Matadin does not claim prejudice to his liberty interests,given the lack of restrictive bail terms imposed, but asserts infringement of the remaining interests. [25] Prejudice to one’s security interests contemplates overlong subjection to the stress and anxiety arising from disruption ofwork, as well as financial and legal costs: see R. v. Kovacs-Tatar; Rahey v.

The Queen (1987), (SCC), 33 C.C.C. (3d)289 (S.C.C.). [26] There is, as well, a distinction between prejudice due to delay in the proceedings and that caused by being charged with acriminal offence. It is only the former that has relevance in this analysis: R. v. Kovacs-Tatar; see also Rahey v. The Queen. [27] Prejudice can be inferred from the length of the delay or, as noted earlier, be specific to the applicant if established by theevidence: R. v. Campagnaro.

The longer an accused must wait for trial, the greater the likelihood prejudice will be inferred and shapethe use of the administrative guideline in the balancing of the Morin factors. It is by the presence or absence of prejudice that theapplication of the guideline will then be influenced in either direction: R. v. Morin; R. v. Tricker. Evidence of Prejudice [28] Mr. Matadin testified that he is 65 years old and unable to read. He is concerned that if he loses his job as a courier he willbe unable to find work to help support his children, both of whom are students.

He is also worried he will be unable to afford theinevitable increase in car insurance and the costs of any remedial driving program. He says the degree of his anxiety has increasedbecause of the delay in this case. He has not sought assistance for his stress, but I note he cooperated with the Crown’s effort to find anearlier trial date. [29] Mr. Matadin also expressed the concern that his ability to remember some details of his case may be compromised by thepassage of time, although he does not claim memory problems to this point despite his age.

He concedes reviewing the disclosure willhelp refresh some of his memory of the events, although not all of it. [30] The concerns expressed here are the inevitable result of being charged. Embarrassment and stress are unavoidable. Memories fade over time. The applicant has not called evidence of actual prejudice. [31] However, Cromwell J., in Godin, at para 31, indicates that the question of prejudice cannot be considered separately fromthe length of the delay.

He refers to the statement by Sopinka J. in Morin, at p. 801, that even in the absence of specific evidence ofprejudice, it may be inferred from the length of the delay and that the longer the delay, the more likely such an inference will be drawn. [32] In considering whether there is at least inferred prejudice in this case, and its significance, I view that question in thecontext of those authorities, with which I agree, that have indicated impatience with the failure of governments over many years toadequately address delay problems by applying the lower end of the Morin range as a guideline for acceptable institutional delay in thiscourt in relation to uncomplicated drinking and driving cases. [33] In Meisner, Justice Hill noted that as the government had had over a decade of experience in dealing with trial delay in Peel,he set the amount of “constitutionally tolerable” institutional delay for a routine impaired driving trial in the Ontario Court of Justicetoward the lower end of the guideline at 8-9 months.

Justice Robertson in McCourt, upheld on appeal at [2006] O.J. No. 1800 (Ont.S.C.), adopted that standard for this jurisdiction. I apply that standard in this case. [34] In the circumstances, I view the prejudice described by the applicant, in light of the operative and institutional delay herethat is well outside the lower end of the guideline, to be real prejudice in the manner contemplated in Godin. The extended impact on hisstress and risk to memory cannot be minimized.

Balancing of Interests [35] In Morin, the court held that an accused’s interest in a trial within a reasonable time must be balanced against society’sinterests in law enforcement that by its nature is adverse to the interests of the accused: R. v. Conway, (SCC), [1989] 1S.C.R. 1659 (S.C.C.). [36] It is clear that while the presence or absence of prejudice affects the strength of the applicant’s interest in a trial within areasonable time, the seriousness of the offence strengthens society’s interest in bringing an accused to trial.

Drinking and drivingcharges are viewed seriously by the court, as indicated in R. v. Bernshaw (1996), (SCC), 95 C.C.C. (3d) 193 (S.C.C.),where Cory J. spoke of the “terrible trail of death, injury, heartbreak and destruction” left by drunk driving in Canadian society. [37] This is a close case. The institutional delay is outside the guideline by at least 3 months in the context of which I find realprejudice to the accused’s security and fair trial interests.

At the same time, the charge is serious giving force to society’s interest thatsuch cases be brought to trial. [38] I am mindful that in Morin, McLachlin J., as she then was, wrote that: “where the accused has suffered clear prejudice,which cannot be otherwise remedied, the balance may tip in the accused’s favour, and justice may require a stay”. [39] By his actions, the applicant indicated a desire for a speedy trial. He suffered real prejudice from institutional delay. On abalancing of the relevant factors, I find the applicant’s s. 11(

b) rights to have been infringed. The only remedy is a judicial stay. Thecharge is stayed.

Released: October 4, 2011 Signed: “Justice L. Feldman”