SW Legal Services Published in Charter of Rights Decision – Trial Delay
In this case the trial paralegal was successful in obtaining a stay of proceedings following their motion under the Canadian Charger of Rights and freedoms, s. 24(1) for a stay of the charge based on violation of their 11(b) right to a trial in a reasonable amount of time.
The prosecutor appealed the decision as they felt that the stay of the offence was unreasonable under the circumstances. Peter Swales submitted written arguments and presented oral arguments on the hearing of the appeal and was successful in obtaining this decision that solidified and upheld the court’s initial ruling that the defendant’s rights were violated by the unreasonable delay in waiting for their trial date.
COURT FILE NO.: Central East – Newmarket – 4911 999 00 1106024B
CITATION: R. v. Hoac, 2015 ONCJ 676
O N T A R I O C O U R T O F J U S T I C E
|HER MAJESTY THE QUEEN|
|— AND —|
|DUC THANH HOAC|
Before Justice P.N. Bourque
Released on September 4, 2015
- McDonnell………………………………………………………………………………… for the Prosecutor
- Swales………………………………………………………………………………………….. for the defendant
 This is an appeal from the decision of Romagnoli J.P. wherein she granted a stay of the charge of careless driving against the defendant on the basis that he had not been tried within a reasonable period of time.
 This appeal is under section 136 of the Provincial Offences Act, and provides that the appeal is conducted as a review. As this is the finding of a breach of a Charter right to be tried within a reasonable period of time, the underlying facts are reviewed on the standard of “palpable and overriding error”, but the application of the facts to the issue of whether the delay offends the Charter right is correctness. If a breach of the right to be tried within a reasonable time is found, then the only prescribed remedy is a stay under section 24 (1) of the Charter.
The decision below
 By Ruling dated January 26, 2015, Her Worship Romagnoli granted the application and stayed the charges. The Justice of the Peace, in my opinion, reviewed the previous court attendances and decided that time begins to run when the accused files his Notice of Intention to Appear (November 1, 2013). She found that the first trial date set was on July 28, 2014, and the matter was adjourned at the request of the Crown because the Crown discovered that the officer was on leave. A new trial date of January 26, 2015 was set.
 The Justice of the Peace dealt with the argument presented by the Crown about the July 28, 2014 adjournment (I will review it in detail below) and rejected it. She therefore calculated the prosecution and institutional delay at 14 months and 26 days and found that to be unreasonable as being “well outside of the time period held reasonable by our courts”.
 The Crown appeals and argues that certain actions by the defence disentitled it to claim any delay up to the first trial date, and further that the Justice of the Peace did not do the proper analysis as per R. v. Morin.
Relevant time periods and actions by the parties which impact the issue of delay
|Date of Offence||October 13, 2013|
|Date of Charge||October 13, 2013|
|Notice of Intention to Appear||November 1, 2013|
|Trial Notice sent out by Court||January 14, 2014 – The court office is deemed to have the leave dates of any officers involved in the case.|
|1ST Trial Date||July 28, 2014 – application brought by the Crown for an adjournment because the trial date conflicted with the officer leave dates.|
|2ND Trial Date||January 26, 2105 – 11(b) application granted.|
|Total time from charge to trial completion||15 months and 13 days|
|Total time from notice of intention to appear to trial completion
|14 months and 12 days|
|Total time from issuance of trial date from court till trial completion
|12 months and 12 days|
 I agree with the Crown that the presiding Justice of the Peace did not engage in a formal process of weighing the factors as set out in R. v. Morin. I think that perhaps the Justice could be forgiven in doing so, taking into account the very long period of delay that she found in this matter and the fact that the Crown made no arguments on any of the Morin issues (and seemed to implicitly accept the case of R. v. Andrade, 2011 ONCJ 470 (CanLII),  O.J. No. 4245 as setting the outer limit of institutional delay when no prejudice is shown).
 However, while some of the Morin analysis can be inferred from judgment, there was no analysis of prejudice.
 As a result, I will perform my own analysis of the issues before the presiding Justice of the Peace at the trial.
 Section 11(b) explicitly focusses upon the individual interest of liberty and security of the person. Nonetheless, there is, at least by inference, a community or societal interest implicit in section 11(b). The failure of the justice system to deal fairly, quickly and efficiently with trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures. When a trial takes place without unreasonable delay, with all witnesses available and memory is fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not, will be acquitted and vindicated.
 As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: R. v. Morin at p. 13. This applies not as a separate analysis of the 11(b) issue but is applied throughout the analysis. It should always be remembered that this is a Provincial Offence and is not the Criminal Code.
 To decide whether section 11(b) has been infringed, the court must balance these individual and societal goals with the length and causes of the delay. In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered.
- the length of the delay;
- waiver of time periods;
- 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 delay, and
- prejudice to the accused.
 In R. v. Godin, 2009 SCC 26 (CanLII), 2009 SCJ 26 (CanLII), the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. As stated at paragraph 18:
. . . It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, “[t]he general approach … is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11 (b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.
Length of the delay
 In this case the total length of the delay from charge (or from the Notice of Intention to Appear), until attendance for the completion of the trial is over 15 months. In my opinion, this length of time requires an inquiry into the reasonableness of the delay.
Waiver of some or all of the time periods
 Courts have recognized that a defendant may waive 11(b) rights in their entirety or for specific periods during the course of the proceedings. Such a waiver must however be unequivocal and made by an informed defendant. Waiver by counsel for the defendant will almost always be assumed to be unequivocal and informed.
 In this proceeding there has been no express waiver of the all or part of the time periods.
Reasons for the delay:
Inherent time requirements of the case
 This matter is a Highway Traffic Act offence. The police investigation was complete by the time of the laying of the charge. In all respects it is a very routine case and is usually started and completed within a day.
 There is therefore no reason in the time requirements of the case that the time frame as suggested in Morin should not be complied with; that is, an institutional delay period of between 8 and 10 months.
 The application of a guideline will be influenced by the presence or absence of prejudice. In this case there was no indication of any prejudice beyond the prejudice recognized by courts. As stated by Justice Libman in R. v. Andrade: . . . Despite there being no evidence of prejudice to the defendants, as will not infrequently be the case in Part I provincial offences proceedings, this must be balanced by the public interest in a fair, efficient and timely process for bringing such matters to trial.
Availability of Counsel
 There are no issues about counsel availability.
Actions of the Accused
 The defendant promptly retained counsel and filed his notice of intention to appear, within two weeks. Subject to my discussion below about the disclosure issue raised by the Crown, the defendant always expressed his willingness to proceed to trial at the earliest dates to be offered by the court. The defendant did not specifically object to the adjournment but I don’t believe that they have to. Failure to object does not mean an unequivocal waiver. I do not accept it as such.
Actions of the Crown
 If the matter had proceeded to trial on the first trial date (July 28, 2014) – at 8 months after the notice of intention was filed, while this matter was nearing the upper limit of delay, it probably would have survived such a challenge.
 The reason for the delay in this matter was because the court did not (for unknown reasons) take into account the officer’s leave schedule before setting the trial date. Without considering any other issue, that would be a delay which would fall at the feet of the Crown. I believe the Crown accepts that all of that delay (after July 28, 2014) does indeed fall at the feet of the Crown.
 The Crown takes the position that since the defence did not apply for disclosure until June 24, 2014, then that proves that they were “not ready for trial” and thus no delay up to that date can fall at the feet of the Crown or the Courts.
 This argument was made by the Crown before the presiding Justice. She dealt with it in the following manner:
As I understand it, with respect to disclosure, the defendant can certainly proceed to trial in the absence of disclosure if they don’t need it or if they don’t want it. I’m not aware of any requirement that the defendant has to make a request for disclosure albeit, he is certainly entitled to it…
 I can find nothing wrong with the foregoing analysis. If the defence had sought an adjournment for a lack of disclosure, then this would be a different matter, and the court would have to see if this failure of disclosure fell at the feet of the defence. If so, then periods of delay would clearly be waived.
 In the cases cited by the Crown, on this appeal, (such as R. v. Tran, 2012 ONCA 18 (CanLII),  O.J. No. 83) the issues of disclosure were dealt with in an entirely different context. The issue there was whether the failure to provide certain items of disclosure could reasonably have led to trial delay. That is not the case here. In this case the defence made no complaint about disclosure or lack of it. It was prepared to proceed on the date set for trial taking into account the status of the disclosure. By his lateness in asking for it he probably had no cause for complaint, and certainly did not make any complaint.
 The Crown also argues that because Tran states that the delay can only run from the time that counsel is ready for trial, then without disclosure it is some type of proof that they could not have been ready for trial. Taking into account that these are relatively straightforward matters under the Highway Traffic Act, the need for voluminous disclosure in this case would probably pale in comparison to a trial under the Criminal Code. It also assumes that counsel do all of their trial preparation at the time a trial date is set with nothing to be done as the trial approaches. Nothing could be farther from the truth. Many counsel leave the preparation to the weeks or even days before trial commences.
 Certainly, in criminal matters things are ordered somewhat differently. Trial dates are not set until all or substantially all of the disclosure has been given. In the Provincial Offences court, the disclosure is not routinely given until it is requested “after the trial date is set by the Court”. It in my opinion makes the Tran analysis for a provincial trial somewhat problematical.
 It is not for me to dictate to the defence why and how it then does its preparation for trial. I do not think that Tran or other cases stand for the proposition that the defence cannot be ready for trial in Provincial Offences matters until they ask for disclosure. I agree with the Justice of the Peace that they may be content without it. It is not for me to say.
 What this really does it attempt to determine when the “start time for the delay clock” begins to run, or indeed is there anything comparable to the “intake time” in criminal trials which are neutral in the 11(b) analysis.
 The Justice of the Peace assumes that the intake time is finished when a defendant files his Notice of Intention to Appear. Justice Weinper in R. v. Williams,  O.J. No. 5788 seems to assume that there should be a certain time required to “process the request for trial”. Justice Libman in Andrade, supra, goes into a more in depth analysis and indeed has a significant evidentiary record. He stated that an intake period should be between 30 and 45 days, depending on whether the defence replies promptly and files the notice of intention to appear. In any event, Justice Libman states that a period of approximately two months from the offence date should be done.
 I therefore will use December the 13th as the most appropriate date, but if I am incorrect, I will also assess the delay from the date the notice of trial was actually sent out, that is January 14th, 2014.
 The approximate delay in the former is 13 months and the approximate delay in the latter is 12 months.
Limits on Institutional Resources
 The Crown has not brought to my attention any specific limits on the institutional resources in this jurisdiction.
Prejudice to the Accused
 There was no evidence filed of any specific evidence of prejudice to the defendant flowing from this delay.
 I have already cited the excerpts from R. v. Godin, which restates the prejudice resulting naturally from a situation where the guidelines in Morin are exceeded by a significant amount.
 I therefore will consider those aspects of prejudice which are inherent to this delay. In my opinion a delay of 12 months to get a Highway Traffic Act matter to trial are significant and exceed by a wide margin any guidelines, either set in Morin, or any other case.
 In my opinion, a delay of 12 months to bring this HTA matter to trial is so long a delay that the inferred prejudice from such a delay outweighs any societal interest in bringing this matter to trial. As stated by Libman J. “……There is a societal interest in the effective and vigorous prosecution of highway traffic offences, particularly where harm or the potential for harm is present.  On the other hand, there is nothing particularly complex about the charges against these two defendants. Highway traffic infractions are not impervious to Charter 11(b) scrutiny.”
 In my opinion, the charges should be stayed for delay and I do not disturb the ruling of the Justice of the Peace in that regard. This appeal is dismissed.
Signed: “Justice P.N. Bourque”
Released: September 4, 2015