HER MAJESTY THE QUEEN — v. —, 2013 ONCJ 439

ONTARIO COURT OF JUSTICE CITATION: R. v. Lore . 2013 ONCJ 439 DATE: 2013·08·09 COURT FILE No.: Toronto 4817 998 12 70018541 BETWEEN: HER MAJESTY THE QUEEN — AND — PASQUALE LORE Before Justice W. B. Horkins Heard on July 22, 2013 Ruling on an Application to Stay Proceedings Released on August 09, 2013 Robert Levan .......................................................................................... counsel for the Crown Adam Little .............................................................. counsel for the defendant Pasquale Lore W. B. HORKINS J.: [ 1 ] Mr.

Lore stands charged with impaired driving and driving “over 80”. On the date scheduled for trial this case will be almost 15 months old. The accused has applied for a Judicial Stay of the proceedings, asserting an infringement of his rights under s. 11(

b) of the Canadian Charter of Rights and Freedoms , which guarantees him a trial within a reasonable time. [ 2 ] For the reasons that follow the application is granted. I. INTRODUCTION [ 3 ] Mr. Lore was arrested on July 17, 2012, and charged with these drinking and driving offences. The allegations are very straight forward. The accused was pulled over for speeding; some indicia of alcohol impairment were observed; the accused admitted to having had “a few beers”; he was arrested and taken in for breath testing.

The tests indicated a very high blood alcohol level, in the range of 220 milligram percent; a level approaching three times the legal limit. II. APPLICABLE PRINCIPLES [ 4 ] As to the applicable principles of law, I have instructed myself by referring to my own judgment in R. v. Hamilton [2010] O.J. 4407, paragraphs 7 through 27, which I insert here for ease of reference: The Law [7] With respect to the law and its application, I have instructed myself in this case in accordance with my own reasons for judgment in

the case of R. v. Donaldson, reported at [2010] O.J. No. 72. Taken directly from that judgment are the following paragraphs, 8-27. [8] Invoking

Section 11(

b) of The Canadian Charter of Rights and Freedoms stipulates that, "any person charged with an offence hasthe right to be tried within a reasonable time". [9] On its face, this would seem to be a simple objective. Yet the failure of the criminal justice system to deliver consistently on thispromise has generated more litigation than any other provision in The Canadian Charter of Rights and Freedoms.

The seeminglyperpetual lack of adequate resourcing, across the board, in the criminal justice system in this province is without doubt the principalreason for this failure. [10] At the outset of the analysis of this issue I caution myself that, as tempting as it may be for the Court to vent on the sorry state ofthe case management systems in this jurisdiction, this application is not the appropriate forum for "critiquing the system". To do so risksthe undignified appearance of the Court descending into some sort of judicial labour grievance.

As the Court of Appeal noted recently inoverturning a judicial stay in Schertzer, 2009 ONCA 742 , [2009] O.J. No. 4425, and “s. 11(

b) is not the medium through whichthe quality of the prosecution's performance is measured.

Section 11(

b) focuses exclusively on delay and the causes of that delay ...” [11] I take the point of this comment to be a reminder that the s. 11(

b) analysis is case specific and that the issue is delay itself and notdetermining culpability for the underlying causes of that delay. The task of the Court is to identify the various operative factors in theparticular case that have created delay and then judicially balance the competing interests that s. 11(

b) seeks to protect. As Chief JusticeMcLachlin wrote in her reasons in Morin (1992), (SCC), 71 C.C.C. (3d) 1, "... simply listing factors does not resolve thedilemma of a trial judge faced with an application for a stay on grounds of delay. What is important is how those factors interact andwhat weight is to be accorded to them." [12] At the outset of this exercise it is also worth bearing in mind the caution voiced by Justice Cromwell in Godin, 2009 SCC 26, [2009] S.C.J. No. 26, that the 11(

b) framework of analysis "often leads to minute examination of particular time periods and ahost of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the treeswhile engaged in this detailed analysis." [13]

Section 11(

b) of The Canadian Charter of Rights and Freedoms seeks to protect both the individual rights of an accused and alsothe collective public interest. These are often naturally opposing interests in the criminal justice system: the individual rights of anaccused and the competing broader societal interests of the community. [14] The constitutionally protected individual rights which

section 11(

b) seeks to ensure have essentially three aspects: 1) The right to security of the person by minimizing the anxiety and stigma of criminal proceedings; 2) The accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and 3) The accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.). [15]

Section 11(

b) also seeks to protect two societal rights: 1) The public's interest in having our laws enforced with some certainty by having those accused of crime brought to justice swiftly; and, 2) The public's interest in having those accused of crime dealt with fairly. See R. v. Qureshi, (ON CA), [2004] O.J.No. 4711. [16] Undue delay erodes public confidence in the criminal justice system; The Charter recognizes the truth in the old adage "justicedelayed is justice denied". The Framework of Analysis [17] To determine whether s. 11(

b) has been violated, the Court must consider and balance all of these individual and societal goals inthe context of both the quantum of delay and the causes of delay in the particular case. In Morin, the Court set out four factors as theframework for this judicial balancing: 1. The 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 accused

c) Actions of the Crown

d) Limits on institutional resources, and

e) Other reasons for the delay

4. Prejudice to the accused. [18] For 11(

b) purposes, the history of a case begins with the laying of the charge, or the swearing of the Information, and continuesuntil the completion of the trial or until there is a final resolution. [19] The history of a typical criminal case will have two major chapters, firstly, the intake period leading up to the assignment of atrial date and, secondly, a period of time simply waiting for the scheduled trial date to arrive. A reasonable intake period is inherent in allcases and so considered neutral time in the 11(

b) analysis. Once the intake process is complete, the case is theoretically ready for trial.The backlog of other "ready" cases already set down for trial dictates the waiting time for a trial date. The period of time from the settingof the trial date to the earliest available trial date is systemic or institutional delay. The Backlog of "Ready" Cases [20] It is a startling fact that the backlog of cases in the College Park Courthouse consists almost entirely of cases that will neveractually proceed to trial.

I am the administrative judge in this courthouse and, as such, I know for a fact that, during the materialtimeframe of this case, every week, not just some weeks, but every week, 90% of the cases forecast to last one day or more collapsed onthe trial date. This is the real delay problem in the prosecution of criminal cases in this jurisdiction. I reference this aspect of the backlogproblem because it is the context in which this case exists. [21] Institutional or systemic delay starts to run "when the parties are ready for trial but the system cannot accommodate them" with atrial date.

Morin gave as a guideline, a range of 8 to 10 months as acceptable institutional delay. It is certainly arguable that theguidelines of constitutionally tolerable systemic delay as described in Morin are today outdated reference points. The government hashad more than a quarter of a century to improve upon the systemic deficiencies that undermine the constitutional rights protected bysection 11(

b) of the Charter and the situation has only grown worse. [22] A 9- to 12-month systemic delay created by the backlog is a virtual given for every case set for trial in this courthouse. This putsevery case potentially at the outer limits of the Morin guideline. In the present state of affairs then, there remains little, if any, margin forerror in the intake phase if a case has any hope of being tried within the constitutionally mandated reasonable timeframe. The Intake Phase [23] Every criminal case has certain inherent time requirements, which inevitably lead to some delay.

The inherent "intake" timerequirement of a case is the time reasonably required to have the case ready to proceed to trial. This "intake" stage of a criminal caseincludes laying the charge, retention of counsel, applications for bail and other pre-trial procedures. The intake period is an inherent andnecessary phase in the life of every criminal prosecution and is neutral in the 11(

b) analysis, but only to the extent that it is reasonable. [24] The availability of adequate institutional resources is assumed when determining what is a constitutionally reasonable intake timeand therefore neutral, for a given case. The Standard for Granting a Stay [25] Having referenced above the present institutional inadequacies as the context in which this case exists, a note on the standard ofconstitutional toleration is appropriate; the standard is clearly not one of perfection but rather one of reasonableness.

The assessment isnot whether the time to trial is optimal but rather whether the delay exceeds what is constitutionally tolerable. The Morin guideline is amarker at the boundary of what is constitutionally permissible. [26] Although the "only in the clearest of cases" test generally applies to granting the extraordinary remedy of a judicial stay, that testis clearly not appropriate in an 11(

b) application. Authority for this is found in R. v. Thompson, [2009] O.J. No. 4586 (Ont. C.A.): "... For non-section 11(

b) Charter breaches, a stay is the remedy of last resort to be reserved for the clearest of cases, the vast majority ofwhich involve prejudice to the right to a fair trial or the right to make full answer and defence. However, a different test applies in thecase of a breach of s. 11(b). There, a stay is the "minimal remedy" and it has been held that "[n]o flexibility exists; a stay of proceedingsmust be ordered": see Rahey v. The Queen, (SCC), [1987] 1 S.C.R. 588, at p. 615; R. v. Kporwodu (2005), (ON CA), 75 O.R. (3d) 190 (C.A.), at para. 2. Proof of actual prejudice to the rights to a fair trial and to make full answer anddefence is not invariably required. The purpose of s. 11(

b) is broader." Attribution of the Intake Period Delays [27] The attribution of delay in s. 11(

b) cases may often seem a rather unscientific and at times, a somewhat arbitrary exercise. Theunderlying cause of a troublesome pace of a prosecution can often be a mixture of problems arising from a combination of sources. Whatat the time might have seemed reasonable, with the benefit of hindsight, may now appear to have been an unnecessary waste of time.What to the Court may now seem unreasonable may have made bona fide good sense to counsel in the context of their instructions and amore informed and contemporary understanding of the case.

I caution myself accordingly in attributing the sources of the delays in thiscase. III. CHRONOLOGY [5] The history of this proceeding is, as follows: 7 July 2012 Date of Offence: accused arrested and releasedon “Form 10”; ALS in effect. 0

31 July 2012 Information Sworn. +2 wks 28 August 2012 1 The first appearance.

The matter was put over to September 26, 2012. +6 wks 26 September 2012 2 Disclosure incomplete; officer’s notes, Intoxilyzer records, etc. – put over to October 17, 2012. +2 mos 17 October 2012 3 Disclosure still incomplete – Crown pursuing it – put over to November 7, 2012. +3 mos 7 November 2012 4 Some further disclosure – notes and Intoxilyzer materials still missing – put over to November 21, 2012. +3.5 mos 21 November 2012 5 Disclosure complete except for essential officer’s note – Crown pre-trial to be conducted in any event – put over to December 12, 2012. +4 mos 12 December 2012 6 Trial date set for October 8, 2013 – defence counsel available from December 18, 2013. +5 mos 22 July 2013 7

Section 11(

b) Application heard. +1 yr 8 October 2013 Trial date – approximately 15 months from the arrest date. +15 mos [ 6 ] The first issue joined by the parties was when to start counting time, from the date of arrest or from the date the Information was sworn? The law is usually accepted as starting from the date of the Information. Mr. Little makes a very persuasive argument that in cases such as this the starting point ought to be the date of the arrest. The date of the arrest is when this accused is in fact in jeopardy and in fact already suffering sanctions, such as the Automatic License Suspension.

It strikes me as artificial to say that the accused is not yet in jeopardy when he leaves the station “charged” with impaired driving. However, the two weeks difference in this case makes insignificant difference in the final analysis, so I will defer to the accepted precedents and count from the date of the Information: July 3, 2012. [ 7 ] The second issue joined is how much of the intake period is neutral? It took five months to complete the simple disclosure in this case. Five months to get one final officer’s notes produced.

No more than two months is reasonable; so three of the initial five months delay is due to that failure by the police; that delay lies at the feet of the Crown. [ 8 ] The gross time to trial from the setting of the date is ten months. Should this be “netted” by allowing some arbitrary period of time for the parties to be truly ready to proceed? Is that really what Justice Code meant in Lahiry [1] ? I don’t think so. I read that case as reminding trial judges that these applications must be decided on evidence, on facts, rather than on fictional assumptions.

On the facts before me, experienced counsel was prepared to try the case almost immediately. I accept that as a fact. Even if reality dictates that a couple of weeks are needed to gather the witnesses and take care of other logistical issues, the system has still imposed a waiting list on the accused of at least nine months. [ 9 ] The combined institutional and Crown attributable delay is at least 12 months. IV. PREJUDICE TO THE ACCUSED [ 10 ] For the sake of economy I will again instruct myself from my judgment in Hamilton : [41] In the 11(

b) analysis prejudice to the accused focuses on prejudice arising from delay as opposed to prejudice arising from the fact of the charges themselves. Our Court of Appeal has stressed that the issue of prejudice is an important aspect of the 11(

b) analysis. The absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable and an otherwise marginal case may tip either way on this pivotal issue. [42] The most recent guidance on this issue comes from Justice Cromwell in Godin , (supra), where he states:

[30] Prejudice in this context is concerned with the three interests of the accused that s.11(

b) protects: liberty, as regards to pre-trial custody or bail conditions; security of theperson, 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, insofar asdelay can prejudice the ability of the defendant to lead evidence, cross-examinewitnesses, or otherwise to raise a defence. See Morin, at pp. 801-3. [31] The question of prejudice cannot be considered separately from the length of thedelay.

As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidenceof prejudice, "prejudice may be inferred from the length of the delay. The longer thedelay the more likely that such an inference will be drawn". ... [38] Proof of actual prejudice to the right to make full answer and defence is notinvariably required to establish a s. 11(

b) violation. This is only one of three varieties ofprejudice, all of which must be considered together with the length of the delay and theexplanations for why it occurred. [43] S. 11(

b) recognizes that the impact of the criminal justice process can be dramatic and that the injury to security of the personflowing from a sustained overexposure to the process cannot be minimized. In Mills, Chief Justice Laskin described the constitutionallyprotected right recognized by s. 11(

b) as encompassing, "protection against overlong subjection to the vexations and vicissitudes of apending criminal accusation. ... These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitudeof factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. Theseforms of prejudice cannot be disregarded or minimized when assessing reasonableness of delay." See R. v.

Mills (1986), (SCC), 26 C.C.C. (3d) 481 (S.C.C.) [44] The accused here put forward very little by way of prejudice beyond the natural stress, anxiety and financial burdens of beingcharged. He did legitimately claim that those aspects of the process have been significantly amplified by both the passage of time and thedozen or so court appearances required. [45] While much of this prejudice is initially attributable to the mere fact of the charges, there is no doubt that the passage of timesignificantly amplified the impact on this accused.

The prejudice to the accused from the delay in this case cannot be characterized asextreme but it is far from insignificant. V. BALANCING THE INTERESTS AT STAKE [11] I agree with the Crown's submission that the nature of the allegations in this case, drinking and driving, creates a heightenedpublic interest in seeing the allegations proceed to trial on their merits. [12] This case will be 15 months old at the trial date. The "net" delay for 11(

b) purposes is in the range of 12 months. Leavingaside for another day the issue of whether the 8-10 month Morin guideline is now obsolete, the delay here that is attributable to systemicdelay and Crown conduct is well in excess of what is constitutionally tolerable. [13] While there is no significant prejudice to the accused in terms of receiving a fair trial or in terms of having been underrestrictive bail conditions, there is clearly significant prejudice to his constitutional right to security of the person in not beingoverexposed to the ongoing impact of the criminal justice system. VI.

CONCLUSION [14] Having balanced the competing interests, I find in favour of the accused. The excessive delay in this case overtakes thesocietal interest of trying this case, in any event. I order that the charges be Stayed. [15] Again, borrowing from my own comments in Hamilton at paragraph 50: This Court has a constitutional mandate to stay charges where an accused's protected rights under s. 11(

b) are violated. It is thegovernment, not the Courts that decide the priorities in allocating public resources. The predominant reason that criminal cases in thisjurisdiction take so long to get to trial is very simply because insufficient resources are made available to deal with them properly. Thecost of delivering swift justice is undoubtedly steep. The cost of failing to deliver justice in a constitutionally acceptable manner is thatthe Courts are forced to terminate prosecutions such as this. Released: August 9, 2013 Signed: “Justice W. B. Horkins”