R. v. Shukla, 2012 ONCJ 761

COURT FILE No.: DATE: 2012·December·7 Citation: R. v. Shukla , 2012 ONCJ 761 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PRIYA SHUKLA Before Justice Heather McArthur Heard October 16, 2012 Reasons for Judgment released December 7, 2012 V. Beylin............................................................................................................... for the Crown J. Mass............................................................................................................... for the accused McArthur, J.: A. Introduction [ 1 ] On May 8, 2011, Ms.

Priya Shukla was arrested pursuant to s. 254(5) of the Criminal Code for refusing to comply with a demand that she provide a breath sample. The information relating to this charge was sworn on June 15, 2011. [ 2 ] On October 16, 2012 Ms. Shukla brought an application pursuant to ss.11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms seeking a stay of proceedings on the basis that her right to be tried within a reasonable time has been infringed. The date for a trial on the merits has been set for December 7, 2012. The impact of this additional one month and three weeks must be considered in the overall s.11 (

b) analysis. In this application Ms. Shukla bears the onus of proving a breach of her s.11 (

b) right on a balance of probabilities. If she is successful in establishing a violation of her right to be tried within a reasonable time, a stay of proceedings is the only appropriate remedy. B. Basic Chronology of Events [ 3 ] The basic chronology of events is as follows: • May 8, 2011: Ms. Shukla was charged with refusing to comply with a demand that she provide a breath sample. • June 15, 2011: The information was sworn. • June 16, 2011: Ms. Shukla made her first appearance. Disclosure was provided. The matter was adjourned to July 14, 2011 to allow her to retain counsel. • July 14, 2011: Ms.

Shukla made her second appearance. She was in the process of retaining counsel and required an additional two weeks to finalize the retainer. The matter was adjourned to July 28. • July 28, 2011: Counsel appeared for Ms. Shukla. He requested that the matter return on August 18 to allow him time to review disclosure and have a pre-trial with the Crown in the interim. • August 18, 2011: The matter was remanded to September 6, 2011 for a judicial pre-trial. • September 6, 2011: A trial date was set for April 30, 2012. The estimated length of trial was ¾’s of a day.

Agent for counsel stated, “the first date offered was accepted, ready for trial, we have earlier dates as well for this one.”

• April 13, 2012: The Crown filed an adjournment application, returnable on the trial date of April 30, as the officer in chargewas scheduled to testify at a further evidence matter at Old City Hall. • April 30, 2012: At the adjournment application, counsel advised that Ms. Shukla wanted her trial, that she was not consentingto the adjournment and that s.11(

b) was “obviously a live issue here”. The adjournment was granted. A new trial date of May 7 wasoffered, but the Crown witnesses were not available. May 10 was offered, but was unavailable to defence counsel. May 29 was offered,but the Crown witnesses were unavailable. A number of dates were offered in July and available to the defence, but the Crownwitnesses were “not available at all in the month of July.” The next date offered, September 19, was unavailable to the Crownwitnesses. October 12 was not available for the defence and a trial date of October 16 was set.

Counsel advised that the matter could“go directly to that date, barring an application that will be brought couple of months in advance”. Counsel reiterated that Ms. Shuklawas not waiving her 11(

b) rights. • May 3, 2012: Counsel sent a letter to the Court Clerk’s office requesting a copy of the information. • June 12, 2012: Counsel sent a second letter to the Court Clerk’s office requesting a copy of the information. • July 5, 2012: Counsel sent a third request to the Court Clerk’s office requesting a copy of the information. • July 10, 2012: Counsel sent a request for a copy of the transcripts for all court appearances. • August 30, 2012: Counsel sent a request for copies of the transcripts that were still outstanding. • September 13, 2012: Counsel sent another request for copies of the transcripts that were still outstanding. • September 16, 2012: Counsel filed a Notice of Application to stay the proceedings pursuant to ss.11(

b) and 24(1) of theCharter. The cover letter advised that there were outstanding transcripts and that a completed application record would be filed whencounsel’s office was next at the court, provided the transcripts were available.

The letter further stated that although the documents werelengthy, if required, the transcripts received to date and the factum could be faxed. • September 24, 2012: Counsel sent another request for the transcript that was still outstanding. • October 2, 2012: A completed application record was filed. • October 5, 2012: The Crown response was filed. • October 16, 2012: The matter did not commence until 12:00 p.m. as I was dealing with a continuing trial. No additional timehad been added to the original estimate of ¾’s of a day for the purposes of arguing the s.11(

b) issue. It was apparent that both theapplication and the trial could not be completed in the time remaining. I asked counsel to canvas with the trial coordinator whetherOctober 17 could be offered for the continuation of this matter. This option was not canvassed, however, as the Crown witnesses werenot available. The trial coordinator offered November 29 for continuation, but the Crown witnesses were not available. December 7was the next day offered and was accepted by both counsel. C. The Analytical Framework [4] The primary purpose of s.11(

b) of the Charter is the protection of the individual rights of the accused. The rights which thesection seeks to protect are threefold: 1) the right to security of the person; 2) the right to liberty; and 3) the right to a fair trial. Asecondary societal interest also exists; society has in interest in seeing that individuals in the criminal justice system are treated fairly. Moreover, trials held promptly enjoy the confidence of the public. The public has an interest in having those who allegedly break thelaw dealt with quickly on the merits of their cases.

The interests of the accused must also be balanced by the interests of society in lawenforcement. As the seriousness of the offence increases so does the societal demand that an accused person be brought to trial. (See R.v. Morin (SCC), [1992] 1 S.C.R. 771 at paras.26-30) [5] The analytical framework for a s.11(

b) application was set out by the Supreme Court 20 years ago in Morin, supra, and re-affirmed recently in R. v. Godin 2009 SCC 26 , [2009] S.C.J. No 26. Whether delay has been unreasonable is assessed bylooking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons forthe delay, the prejudice to the accused, and the interests that s.11(

b) seeks to protect. [6] When assessing the reasons for the delay, the court must consider five factors: 1) the inherent time requirements of the case; 2)actions of the accused; 3) actions of the Crown; 4) limits on institutional resources; and 5) other reasons for the delay. (See also R. v.Tran 2012 ONCA 18 at paras.20-24) [7] Although the basic analytical framework was articulated 20 years ago, its application has proved to be continuingly difficult forthe Courts. The caution of Cromwell J. in Godin, supra, at para.18, bears repeating.

The required analysis: ...often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certaindelays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

AsSopinka J. noted in Morin, at p,787, “[t]he general approach .... is not by the application of a mathematical or administrative formula butrather by a judicial determination balancing the interest which [s.11(b)] is designed to protect against factors which either inevitably leadto delay or are otherwise the cause of delay. (at para. 18) I now turn to an application of the framework to the present case.

I. Length of the Delay [8] The defence asserts that the length of the delay as of December 7 will be 18 months and 29 days. The Crown argues that thelength of the delay will be 17 months and 22 days. The divergence in the calculations of counsel arises from their differing views onwhen the clock should begin to run. The Crown takes the position that the delay begins from the date the information is laid, not thedate of arrest (See R. v. Morin, supra, at para.35; see also R. v. Kalanji, (SCC), [1989] S.C.J. No. 71 at para. 16 and R.v.

Lahiry, 2011 ONSC 6780 at para 134) [9] The defence, relying on the decision of R. v. Egorov, [2005] O.J. No 6171 (Ont.C.J.), submits an accused is subject to releasedobligations (and thus effectively charged for the purposes of the s.11(

b) analysis) when released on an appearance notice, promise toappear, undertaking or recognizance before the officer in charge. [10] In light of the comments of the Supreme Court in both Morin and Kalanji, however, I find that the relevant time frame for thepurposes of a s.11(

b) analysis flows from the date the information was sworn. In this case, the information was sworn on June 15, 2011,meaning that the overall delay in issue is 17 months and 22 days. [11] Although this period of time is less than that suggested by the defence, the Crown accepts, and I agree, that it is sufficient towarrant an examination of the reasons for the delay. II. Waiver of Time Periods [12] The Crown does not allege that Ms. Shukla waived her rights pursuant to s.11(

b) and I agree. As noted by Sopinka J. in Morin,supra, at para. 67, a waiver must be clear and unequivocal and with full knowledge of the right one is waiving. At no point did Ms.Shukla explicitly waive her rights and none of her actions support an inference of an intention to waive her rights. III. Reasons for the Delay

i) June 15, 2011 to August 18, 2011: Inherent Intake Requirements of the Case, Two Months and Three days [13] Both parties agree that the time frame from June 15 to August 18 should be viewed as part of the inherent time requirements ofthe case. I agree. As such, this time period is neutral for the purposes of the s.11(

b) analysis. ii) August 18, 2011 to September 6, 2011: Time for JPT is Part of Inherent Intake Requirements of Case, 19 Days [14] On August 18, Ms. Shukla’s matter was adjourned to September 6 for a judicial pre-trial. The Crown asserts that this was anecessary step in the proceedings and should be viewed as part of the inherent time requirements of the case. The defence counters that ajudicial pre-trial is mandated by court protocol, but not truly required given the nature of the case.

As such, the time should be viewed asinstitutional delay. [15] I find that this time frame is properly characterized as part of the inherent time requirements of the case. As Simmons J. notedfor the Court of Appeal in R. v. Tran, 2012 ONCA 18 at para. 34: ...it seems to me that requiring a judicial pre-trial to set the trial date(

s) is a reasonable and necessary management tool in busy judicialcentres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation oftheir cases. Accordingly, some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent timerequirements of the case. (See also R. v. Lahiry, supra, at para.116; R. v. Emanuel, 2012 ONSC 1132 at para. 14; Scott Latimer, “Defining JPT times for s.11(

b) purposes, (2011) 84 C.R. (6th) 244. ) iii) September 6, 2011 to April 30, 2012: Inherent Delay of One Month; Institutional Delay of Six Monthsand 24 Days [16] On September 6, 2011, counsel set a trial date of April 30, 2012.

After noting that this was the earliest available trial date, agentfor defence counsel stated “ready for trial, we have earlier dates as well for this one.” Counsel did not specifically advise what earlierdates were available at that point in time. [17] The Crown, relying on paragraph 60 of Lahiry, supra, argues that since counsel did not specify what earlier dates were available,I should allocate half of this time frame to inherent time requirements of the case and half to institutional delay. [18] The defence counters that the agent said “ready for trial”.

Given that this is a straightforward refuse charge, I should find thatcounsel was, in fact, ready for trial and characterize the entire time period as institutional. Alternatively, relying on Morin, supra, hesubmits that I should find some of the time to be inherent time requirements, with the bulk of the time being viewed as institutional delay. [19] As a starting point to this analysis, it is important to keep in mind the comments of Simmons J. in Tran, supra, at para. 32: ...parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set.

Counsel require time toclear their

schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of theinherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unableto accommodate them.

[20] Thus, despite the fact that agent for counsel said “ready for trial” I am unable to accede to the defence submission that I shouldview this entire time frame as institutional delay. While acknowledging that the amount of time needed to prepare for a trial of thisnature is not great, some time was required. Moreover, counsel needed to fit the trial into a calendar that would inevitably have had othermatters already scheduled. [21] That said, I cannot accede to the Crown submission either.

I do not view paragraph 60 of Lahiry, supra, as standing for thegeneral proposition that whenever the defence neglects to put counsel’s earliest available dates on the record that the time frame shouldbe equally split between inherent time requirements and institutional delay. Code J. dealt with four different matters in that judgement. Paragraph 60 dealt with the specific facts of R. v. Carreira.

There, when the trial date was set, the accused was still in the process oftrying to retain counsel, the case had obviously not been prepared for trial and nothing was put on the record to the effect that theaccused was seeking the earliest available date or that he was prepared to proceed on an earlier date. After setting the date, the accusedretained counsel and instructed counsel to seek an adjournment. He then embarked on alcohol counselling and counsel engaged inresolution discussions with the Crown.

Thus, Code J. wrote, “Given the uncertainty in the record, as to whether the accused everbecame ready for trial and as to exactly when he decided that he did not want to proceed to trial, the fairest way to allocate this period ofdelay is to divide it equally between neutral or inherent time requirements of the case and institutional delay.” As I read the decision, itwas the uncertainty in the particular facts of the Carreira case that led Code J. to take the approach he did in paragraph 60. [22] While addressing the specific facts of the Lahiry matter, Code J. did not use the approach that he took in Carreira.

Rather, hereferred to the analysis in Morin, supra, and R. v. Sharma, (SCC), [1992] S.C.J. No 26. In those cases, where counselfailed to state their earliest available date on the record, the Court allocated a portion of the time after setting the date for trial as requiredfor counsel to prepare and make themselves available for trial.

As noted in Morin, supra, at para.41, the “amount of time that should beallowed counsel is well within the field of expertise of trial judges.” This supports the view that where counsel has not put their earliestpossible dates on the record, the Courts may look to all of the circumstances to determine realistically how much time counsel wouldrequire to prepare for the matter and clear their calendars. This is the approach the Court of Appeal took in Tran, supra, at para. 36-40. Indeed, this is the approach that Code J. took in the subsequent decision of R. v. Emanuel, 2012 ONSC 1132 , [2012] O.J.

No.709 at para. 17. There, rather than holding that a nine month time frame was institutional delay, Code J. allocated two months asinherent delay, as the parties would need to retain experts, prepare the facts and law for a difficult motion and clear time in theircalendars. [23] Thus, in this case, it is necessary to determine how much time counsel would require to prepare and clear his calendar. This is astraightforward matter. In Morin, supra, at para. 70, the Court inferred that counsel would require about two weeks after setting thedate for trial.

While the present case is similar to Morin, I find that more than two weeks would be required for defence counsel to fitthis matter into his schedule. I say this as Ms. Shukla’s matter was set for ¾’s of a day, which is longer than the time allocated forMorin’s trial. (see Lahiry, supra, at para. 158.) In general, the longer the trial, the more difficult it is to fit into an already busycalendar. That said, in assessing this matter, I take into consideration that defence counsel was in a position to accept almost every datethat was offered by the trial coordinator.

Moreover, the difficulties in Tran, supra, of finding a mutually agreeable time for a number ofdifferent counsel did not arise in this case. Having regard to the above considerations, I find that one month would be sufficient time forcounsel to prepare and clear his schedule. As a result, one month will be allocated as inherent time delay and six months and 24 days asinstitutional delay. iv) April 30, 2012 to October 16, 2012: Crown Delay, Five months and 16 days [24] The original trial date was adjourned at the request of the Crown.

As a result, the defence submits that the five months and 16days from April 30 to October 16 should be viewed as Crown delay. The Crown counters that new dates of May 10 and October 12were offered, but not available for the defence. Thus, the Crown submits that 23 days of this time frame should be allocated to thedefence (19 days from May 10 to May 29 and four days from October 12 to October 16). As a result, the Crown submits, only fourmonths and three weeks is attributable to Crown delay.

In assessing the Crown submission, I keep in mind the following comment ofCromwell J. in Godin, supra, at para.23: Scheduling requires reasonable availability and reasonable cooperation; it does not, for s.11(

b) purposes, require defence counsel to holdthemselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlierdate. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry – efforts which were ignored – suggests that hewished to proceed expeditiously.

I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: “To holdthat the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crownis responsible for the case having to be rescheduled, is not reasonable.” [25] The comment is apt in the present case. Here, the Crown adjourned Ms. Shukla’s matter to allow an officer to testify in anothercase. The Crown prioritized another matter over Ms. Shukla’s. The first new date offered was May 7, only one week later. Defencecounsel was available.

It was the Crown witnesses who were not. While defence counsel was not available three days later on May 10,he was able to proceed on May 29. Once again, it was the Crown witnesses who were not available. Then, “a number” of dates in Julywere offered and available to the defence. Yet the Crown witnesses were not available for the entire month of July. No reason wasoffered as to why this was the case. No explanation was put forward as to why the officers could not spare a few hours to testify one dayin the month of July. But whether it was because of a holiday

schedule or other trial matters the result was the same for Ms. Shukla. The state failed to give priority to her matter and her case was delayed. Another date of September 19 was offered. Yet again, theofficers were unavailable. [26] In light of the above, I find that the entire time frame should be allocated as Crown delay. I want to be clear that I am notsaying that every time a case is delayed because of a Crown adjournment, that the entire period thereafter falls to the Crown. There willbe situations where the time frame will be viewed differently.

Each case has to be assessed on the basis of its own particular facts. Buthere, where the original trial is adjourned because the prosecution has given priority to another case, and where numerous dates areturned down because the officers fail to make themselves available, then the delay should be attributed to the Crown.

v) October 16, 2012 to December 7, 2012: Inherent Time Requirements, One Month and 21 Days

[27] Determining how to allocate the delay from October 16 to December 7 is a difficult task. There are a number of factors thatmust be considered. The defence argues that those factors militate in favour of finding that the time is institutional delay. The Crowncounters that the time should be viewed

part inherent and

part institutional. For the following reasons, I find that the entire time frameshould be viewed as part of the inherent time requirements of the case. [28] In this case, defence counsel encountered delays in obtaining the information and various transcripts. This led to the s.11(b)application being heard on the day set for trial. Although ¾’s of a day was set aside for a trial on the merits, no additional time had beenadded for the purposes of the motion. Thus, when this matter commenced at 12:00 p.m. on October 16, it clearly could not finish.

If amatter does not finish because the court has other matters on the docket, the resulting delay will be treated as institutional, inherent or acombination of both, depending on the circumstances. In this case the delay resulted because the allotted time did not take intoconsideration the defence s.11(

b) motion. That said, there is no suggestion of any inappropriate tactical manoeuvring by the defence insetting the motion for the day of the trial. In the circumstances, I find that the delay is properly characterized as inherent. (See R. v.Tran, supra, para.54-61) [29] In support of this finding, I note the following. A trial on the merits could very well have been completed in the time availableon October 16. It was the s.11(

b) motion that necessitated the further date of December 7. If the delay as of October 16 was insufficientto warrant a stay, then it would be anomalous if the time period thereafter somehow tipped the balance in favour of a stay. To so findwould truly be turning s.11(

b) into a sword as opposed to a shield. As a result, I find that the entire time from October 16 to December 7is part of the inherent time requirements of the case. vi) Conclusion on the Reasons for the Delay [30] The reasons for the delay can be summarized as follows: inherent time requirements, five months, two weeks and one day(two months and 22 days for intake and JPT, June 15, 2011 to September 6, 2011; one month for counsel to prepare and clear hisschedule, September 6, 2011 to October 6, 2011; one month and 21 days for continuation of trial after the s.11(

b) motion, October 16,2012 to December 7, 2012); institutional delay, six months and 24 days (the time frame from October 6, 2011 to April 30, 2012);Crown delay: five months and 16 days (the time following the Crown adjournment of the April 30, 2012 trial date to October 16,2012). [31] Thus, the total institutional and Crown delay in this matter amounts to 12 months and 10 days. This clearly exceeds the Moringuideline for delay in the Ontario Court of Justice of eight to ten months.

As the Court of Appeal recently reminded in Tran, supra, atpara. 63, however, the guideline is just that: a guideline, not a limitation period. Deviations of several months in either direction can bejustified by the presence or absence of prejudice. (See also R. v. Morin, supra, at para. 76) I now turn to an assessment of the prejudicein this case. IV. Prejudice [32] In this case, there is no suggestion of any prejudice to Ms. Shukla’s liberty or ability to make full answer and defence. Rather,the defence argues that her security of the person interest has been prejudiced. [33] Ms.

Shukla testified in this matter. She explained how she found it difficult to cope with the 90 day license suspension. She hadto let her employer and co-workers know about her situation and she suffered embarrassment. She was unable to attend a conference inthe United States seven months after being charged, because of her employer’s concerns that she would have difficulty at the border. She has found the entire process stressful and overwhelming. She said that having the charges hanging over her head for such a longperiod of time has been difficult.

I find that many of these issues, however, relate to the fact of being charged, as opposed to delay. [34] The defence, however, submits that prejudice can be inferred in this case. He says that it is the unreasonably long exposure tocriminal charges that has taken an undue toll on his client. That is, what was initially prejudice from being charged has becomeprejudice caused by institutional and Crown delay which exceeds the guidelines. (See R. v. Kovacs-Tatar (ON CA),[2004] O.J.

No. 4756 at para. 33) The Crown takes a contrary view. [35] As Cromwell J. noted in Godin, supra, at para. 31: The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p.810, even inthe absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay the morelikely that such an inference will be drawn. [36] In Lahiry, supra, at para. 17, Code J. referred to the delays in Godin, supra, which were “more than double the Morin guideline”as an instance where prejudice could be inferred.

At paragraph 126, he wrote that the “suggestion that prejudice need not be proved, and can be presumed (or inferred) is only correct in the case of “a very long and unreasonable delay”, that is, a delay that is“substantially longer than can be justified on any acceptable basis””. He made similar comments at paragraph 8. Reading thesecomments together might suggest that it is only where there is significant delay, such as that in Godin, where prejudice can be inferred.

Thus, it could be argued, that in a case such as this one, where the delay exceeds the Morin guidelines by two months and 10 days,prejudice cannot be inferred. [37] I do not read Code J.’s comments, however, as standing for that proposition that prejudice can only be inferred in situations akinto Godin. It must be remembered that in all four cases dealt with in Lahiry, the period of delay was within the Morin guidelines. Moreover, in making the above remarks, Code J. relied on the cases of R. v. Smith, (SCC), [1989] S.C.J. No.119, R. v.Askov, (SCC), [1990] S.C.J. No. 106 and Morin, supra.

The reference to those authorities supports the view that CodeJ.’s comments should be read as holding that prejudice can be (although it will not necessarily be) inferred from delays that exceed theMorin guidelines. [38] In Smith, the court was addressing an overall delay of 15 months. About three months of that time was taken up with what wewould now characterize as inherent intake requirements. It was this length of delay that led Sopinka J., writing for a unanimous court, to

state at para. 42: Having found that the delay is substantially longer than can be justified on any acceptable basis , it would be difficult indeed to conclude that the appellant’s s.11 (

b) rights have not been violated because the appellant has suffered no prejudice. ( emphasis added) [ 39 ] In Askov , the court relied on the decision in Smith in commenting that “ it should be inferred that a very long and unreasonable delay has prejudiced the accused. ” Further, at para. 69(iv), the court stated: “There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. [ 40 ] Finally, in Morin , Sopinka J. for the majority noted at para. 61 that “prejudice may be inferred from the length of the delay.

The longer the delay the more likely that such an inference will be drawn”. He went on to explain at para. 63 that “[a]part, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding.” In Morin’s case, the court dealt with institutional delay of 12 months. In assessing prejudice, the court considered the fact that the Crown Attorney’s office had sent a letter offering to attempt to secure an earlier trial date. The accused failed to respond to this letter.

As a result, the court held that Morin had suffered little or no prejudice as she was content with the pace with which things were proceeding. Thus, I do not read the Morin decision as saying that delays of two months over the guidelines cannot lead to an inference of prejudice. Rather, in that case the inaction of the accused negatived the inference of prejudice that would otherwise have been drawn. [ 41 ] In the present case, I find no action or inaction that would serve to negative prejudice. There was nothing Ms.

Shukla did or failed to do which suggests that she was content with the pace at which things were proceedings. In the circumstances of this case, where the combined institutional and Crown delay exceeds the Morin guidelines by more than two months, it is reasonable to infer that Ms. Shukla has suffered prejudice to her security of the person interest. [ 42 ] Moreover, Ms. Shukla has suffered specific prejudice. As a result of the Crown delaying her case to allow the officer to testify in another case, Ms. Shukla had to bear the cost of paying counsel for another trial date.

She is a young woman who works with at-risk- youth. She does not make a great deal of money. I accept that the additional legal fees necessitated by the Crown adjournment prejudiced Ms. Shukla. V. Balancing the Interests [ 43 ] Breath samples are a powerful way to investigate and apprehend impaired drivers. Refusing to provide a breath sample is a serious offence and one where there is a strong public interest in a trial on the merits. Given that, it is hard to understand why the officers could not make themselves available for so many of the dates offered after the adjournment.

An adjournment, I hasten to add, caused by officer unavailability. [ 44 ] Despite the seriousness of the offence, time and again the state failed to give Ms. Shukla’s matter priority. Her interests in a trial within a reasonable time, as well as society’s interest in having the matter dealt with quickly on the merits, were both given short shrift. As a result, the institutional and Crown delay in this matter exceeds the Morin guidelines by two months and 10 days. Ms.

Shukla has suffered prejudice from this delay. [ 45 ] Considering the length of the delay in this case, the lack of any explicit or implicit waivers, the reasons for the delay, the prejudice suffered by Ms. Shukla and balancing that against the societal interest in a trial on the merits, I find that the length of the delay in this case has been unreasonable. Ms. Shukla’s right pursuant to s.11(

b) of the Charter has been violated. D. Conclusion [ 46 ] Ms. Shukla’s right to be tried within a reasonable time has been infringed. As a result, I am staying the proceedings against her pursuant to s.24(1) of the Charter . Date: December 7, 2012 ________________________________ Signed: “Justice Heather McArthur”