Toronto Criminal Lawyer

Drive Over 80 — Toronto Impaired Driving Lawyer

Client:  J.V., Accused
Complainant:  Toronto Police Service
Charges:  over 80 and speeding

The Queen v. J.V.
Ontario Court of Justice, Toronto
Judge Tuck-Jackson
(judicial stay: 31 August 2009)

Crown:  R. Gayne, Office of the Crown Attorney, Toronto
Defence:  Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1  THE COURT:  On June the 23rd, 2008 a member of the Toronto Police Service arrested Mr. J.V. for the offence of operating a motor vehicle with a blood alcohol concentration in excess of the legal limit.

¶ 2  The Information in relation to this incident was laid on July the 9th, 2008. Mr. V. was scheduled to stand trial on this charge on August the 27th, 2009, just over 14 months following the laying of this charge.

¶ 3  Mr. V. has applied for a stay of proceedings, pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms, on the basis that his right to be tried within a reasonable time, as guaranteed by paragraph 11(b) of the Charter, has been infringed.

¶ 4  It is common ground between the parties that, once they were both ready for trial, the Court could not accommodate them for 12 months. However, the parties are not ad idem as to whether or not Mr. V. has demonstrated that he suffered specific prejudice arising from delay, falling beyond the eight to 10 month guideline for reasonable delay, established by the Supreme Court of Canada.

¶ 5  By way of evidence on this application, Mr. Penney on behalf of his client filed an application record, which has been marked as Exhibit 1. I have also had the benefit of hearing additional viva voce evidence from Mr. V. The Crown has called no evidence. Overview of the Governing Legal Principles:

¶ 6  As has been made abundantly clear by the Supreme Court of Canada in R. v. Moran, [1992] S.C.J. No. 25, the general approach to a determination of whether the right guaranteed by paragraph 11(b) of the Charter has been denied is not by the application of a mathematical or administrative formula, but rather by a judicial determination which involves balancing the interests which the section is designed to protect, including the right to security of the person, the right to liberty, and the right to a fair trial, against factors which contribute to delay. Sometimes those factors are inevitable, and sometimes they are avoidable by one, the other, or both parties.

¶ 7  The Supreme Court of Canada in R. v. Moran, supra has identified the following as the relevant factors for consideration in this type of application: (1) the overall 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; and finally, (4) prejudice to the accused.

¶ 8  It bears mentioning that it is also in society's interest that an accused's right to trial within a reasonable time be strictly observed, as articulated by the Supreme Court in R. v. Moran, supra.

¶ 9  Society has an interest in ensuring that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. See R. v. Moran, supra at page eight, paragraph 29.

¶ 10  The exercise of judicial weighing in this type of application must also consider society's interest in law enforcement, an aspect of which is seeing that criminal charges are heard on their merits.

¶ 11  As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial. See R. v. Moran, supra at page eight, paragraph 30.

¶ 12  By offence, I have taken the Court to mean the underlying allegations, and not simply the legal classification of the delict. For example, an allegation of "driving 'over 80,'" as I have before me in this case, can embrace a variety of factual scenarios, some much more serious, from an objective perspective, than others.

¶ 13  As to the factor of prejudice, the appellate authorities have made it clear that it is prejudice arising from the delay, and not the charge itself, which is germane to the analysis.

¶ 14  Having said that, the Ontario Court of Appeal, in R. v. Kovacs-Tatar, [2004] O.J. No. 4756 at page nine, paragraph 33, has recognized that what was initially prejudiced from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines.

¶ 15  Furthermore, as noted in R. v. Moran, supra at page 14, paragraph 62, "Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the Court must consider" in evaluating the degree of prejudice, if any, suffered by the accused.

¶ 16  In particular, "inaction may be relevant to assessing the degree of prejudice, if any, that an accused has suffered as a result of the delay." One example of action or inaction, which is relevant to the assessment of specific prejudice, is whether an accused puts the Crown on notice, on a timely basis, of the prejudice he or she is suffering.

¶ 17  See, R. v. Vertlib, [2006] O.J. No. 660, a decision of our Superior Court, at paragraphs 27 to 28 and 41, upheld on appeal by the Ontario Court of Appeal, and reported at [2008] O.J. No. 1223.

¶ 18  In R. v. Moran, supra, the Supreme Court set an eight to 10 month guideline for reasonable delay. The Court emphasized that this guideline is neither a limitation period nor a fixed ceiling on delay.

¶ 19  Deviations of several months in either direction can be justified by the presence or absence of prejudice. See, R. v. Moran, supra at page 16, paragraph 76. The Supreme Court of Canada itself endorsed such a deviation in the Moran decision.

¶ 20  That case involved a total delay of 14 and a half months. The Court allotted approximately two months for the case's inherent time requirements. The balance, namely 12 months, was attributed to institutional delay.

¶ 21  Ms Moran faced an allegation of operating a motor vehicle while her ability to do so was impaired by the consumption of alcohol, and with a blood alcohol concentration in excess of the legal limit.

¶ 22  There was no suggestion that, as a result of her driving, she caused any property damage, let alone injury. She alleged no specific prejudice attributable to the delay incurred. The Supreme Court, faced with a delay that fell two months beyond the upper end of the guideline it had established, concluded that Ms Moran had not established a violation of her paragraph 11(b) Charter right.

¶ 23  More recently, the Supreme Court of Canada, in its decision R. v. Godin, [2009] S.C.J. No. 26 at page five, paragraph five, made it clear that even where the guideline has been "substantially exceeded," that in and of itself does not make the delay unreasonable.

¶ 24  Put another way, where the impugned delay falls, relative to the eight to 10 month guideline established by the Court, is but one factor relevant to the determination of whether an accused person has established a violation of the paragraph 11(b) Charter right.

¶ 25  If the impugned delay falls well beyond the guideline, that will not be determinative of the application. The Court's decision in R. v. Godin, supra clearly endorses as correct the Court's earlier direction as to the approach to be taken to these applications.

¶ 26  In this regard, Mr. Justice Cromwell, who authored the unanimous decision in R. v. Godin, supra stated, at page seven, paragraph 18, "The legal framework for the appeal was set out by the Court in Moran at pages 786 to 789."

¶ 27  "Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the Defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interest that s. 11(b) seeks to protect."

¶ 28  "This often and inevitably leads to minute examination of particular time periods, and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in that detailed analysis."

¶ 29  "As Mr. Justice Sopinka noted in Moran at page 787, 'The general approach is not by the application of a mathematical 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.'" Application of the Law to the Evidence: Overall Length of Delay:

¶ 30  The overall length of delay in this matter is just over 14 months. The Crown has conceded, quite properly in my view, that this quantity of delay is of sufficient length to raise an issue as to its reasonableness, and merits further scrutiny. Waiver of Time Periods:

¶ 31  Once again, the Crown concedes that Mr. V. has not waived his right to complain about any period of delay occasioned in this case. I agree. The

Reasons for the Delay: (A) Inherent Time Requirements of the Case

¶ 32  As noted in R. v. Moran, supra at page 10, paragraph 41 and following, "All offences have certain inherent time requirements which inevitably lead to delay."

¶ 33  "Just as the fire truck must get to the fire, so must a case be prepared. The complexity of the trial is one requirement which has often been mentioned. All other factors being equal the more complicated a case, the longer it will take counsel to prepare for trial, and for the trial to be conducted once it begins."

¶ 34  "The inherent time requirements of such cases will serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set of facts which must be evaluated."

¶ 35  "As well as the complexity of a case, there are inherent requirements which are common to almost all cases. The respondent has described such activities as 'intake requirements.' Whatever one wishes to call these requirements, they consist of activities such as retention of counsel, bail hearings, police and administrative paperwork, disclosure, etc."

¶ 36  "All of these activities may or may not be necessary in a particular case, but each takes some amount of time. As the number and complexity of these activities increase, so does the amount of delay that is reasonable."

¶ 37  "Equally, the fewer the activities which are necessary, and the simpler the form each activity takes, the shorter should be the delay."

¶ 38  This case is factually analogous to the circumstances which arose in R. v. Moran, supra. In that case, the Supreme Court of Canada assigned two months to the case's inherent time requirements.

¶ 39  I see no reason to depart from that timeframe in this case, and indeed I note that both parties have submitted that the case's inherent time requirements have been two months.

(B) Actions of the Accused & (C) Actions of the Crown:

¶ 40  It is common ground between the parties that neither the accused's actions, nor those of the Crown, delayed this matter in coming to trial.

(D) Limits on Institutional Resources:

¶ 41  It is common ground between the parties that they were ready to proceed to trial as of August the 29th, 2008. At that time, August the 27th, 2009 represented the earliest date by which the Court could accommodate them.

¶ 42  MR. WILSON: Your Honour, I apologize for interrupting. My colleague, Mr. Gayne, has kindly agreed to swap with me once again, given the fact there's a fitness hearing.

¶ 43  THE COURT: Okay.

¶ 44  THE COURT: Institutional delay in this case amounts to 12 months.

(E) Other Reasons:

¶ 45  There are no other reasons for the delay in this case. Prejudice to the Accused:

¶ 46  By way of his affidavit and viva voce evidence, Mr. V. alleges one form of specific prejudice, namely anxiety, which he attributes to delay in this matter.

¶ 47  He alleges that this form of specific prejudice has manifested itself in a variety of ways. It is common ground between the parties that Mr. V. has, and continues to suffer from, anxiety for which he has seen a psychotherapist for over a year, twice a month.

¶ 48  The live issue is isolating whether, and to what extent, that anxiety arises from unreasonable delay in this matter. In August 2006, Mr. V.'s father suddenly died of a heart attack.

¶ 49  He was 49. Mr. V. was 25 at the time, and in the process of learning the real estate trade from his father. Following his father's death, Mr. V. took it upon himself to maintain his father's practice, and he became a licensed real estate agent.

¶ 50  It is clear that the death of his father created a great deal of stress for Mr. V. However, he ignored, or perhaps was oblivious, to the warning signs of that stress.

¶ 51  Mr. V. was charged with the offence before the Court on June the 23rd, 2008. On June the 26th, 2008 he retained Mr. Penney as his counsel, and at Mr. Penney's suggestion began to see Mr. T. K. Quek, a psychotherapist, in July 2008.

¶ 52  I have had the benefit of reading a report from Mr. Quek, which forms part of Mr. V.'s affidavit in Exhibit 1. It is clear from that affidavit that Mr. Quek was able to meaningfully assist Mr. V. in coping with the stress associated with his father's death by September 2008.

¶ 53  Thereafter, Mr. Quek noted that his patient was showing signs of emotional fatigue, and heightened anxiety associated with the uncertainty of this criminal case.

¶ 54  I note that this increase in distress seems to have temporally coincided with when Mr. V. would have learned of his scheduled trial date, and that it was some 12 months down the road.

¶ 55  According to Mr. Quek, that anxiety persisted, and has manifested itself in a reported loss of sleep. I also note that between November 2008 and April 2009, Mr. V. failed five real estate license renewal exams by reason of a diminished ability to concentrate.

¶ 56  He had had no difficulty passing the very same exams, prior to the charge being laid. Under, "Summary of findings and conclusion," Mr. Quek writes, "Mr. V. first presented with issues that arose from his charges.

¶ 57  "These issues related to the death of his father in 2006, and the subsequent emotional problems that this sudden death brought to him. The issues of grieving, and the subsequent problems with depression, were dealt with by him by about September 2008.

¶ 58  "Since September 2008, Mr. V. appears to have struggled significantly with depression and anxiety that has precipitated in poor social relationships, poor sleep patterns, and poor concentration.

¶ 59  "This emotional state appears to have been engendered from the criminal case that he faces, and the length of time it has taken to be resolved. Though Mr. V. appears to have responded well to treatment for depression and anxiety, his emotional states remain unstable, particularly because of the ongoing status of his criminal case."

¶ 60  I note that the Crown elected not to cross-examine Mr. Quek on the contents of his report. As Mr. V. testified before me, his sentences were punctuated with shortness of breath.

¶ 61  His anxiety was obvious. As he described his distress over the delay in this matter, it was clear to me that his state was genuine, and that it persists some 14 months after he was first charged.

¶ 62  While I appreciate that not all of Mr. V.'s anxiety is causally connected to the delay in this matter, some of it clearly is. As an additional indication of the genuineness of the causal connection between Mr. V's anxiety and the delay occasioned in this matter, I note that Mr. V.'s actions suggest that he very much wanted this case to move along quickly.

¶ 63  He had retained Mr. Penney within three days of being charged, and before his first Court appearance. A trial date was set at his second court appearance. The earliest possible trial date was sought.

¶ 64  In addition, six months after that trial date was set, Mr. Penney on Mr. V.'s behalf contacted the trial coordinator's office to see if any earlier dates had become available. None had.

¶ 65  In my view, Mr. V. has demonstrated that he has suffered specific prejudice to his interests in security of the person, attributable to delay that falls beyond the eight to 10 month guideline for reasonable delay. Conclusion:

¶ 66  I will not turn to my balancing of the relevant factors. As noted above, limits in institutional resources account for 12 of the 14 months of delay in this matter.

¶ 67  This timeframe clearly falls beyond the eight to 10 month guideline established by the Supreme Court of Canada. I have been mindful of the nature of the allegations in this case.

¶ 68  At the material time, the police pulled Mr. V. over for speeding. He was travelling on the Gardiner Expressway at 2:10 in the morning. He failed a roadside screening test, and later at the police station samples of his breath generated readings which indicated blood alcohol concentrations of 120 mg of alcohol in 100 mL of blood, and 110 mg of alcohol in 100 mL of blood.

¶ 69  There was no accident causing property damage, let alone personal injury. It emerged, during the course of Mr. V.'s viva voce evidence, that he has a 2001 conviction for operating a motor vehicle with a blood alcohol concentration in excess of the legal limit.

¶ 70  Mr. Emami, on behalf of the Crown, urges me to consider this fact when weighing the societal interests in seeing the charge before me tried on its merits. It is the position of the Defence that while a related criminal record may be relevant to this issue, it is not, in this particular case, given how dated the conviction is.

¶ 71  I have not been provided with any appellate authority as to the issue of relevance of a previous finding of guilt, or conviction, to society's interest in seeing that a trial be heard on its merits.

¶ 72  I have also not had the benefit of extensive submissions on the point. I will, however, make the following observations. Firstly, society's interest in seeing a matter tried on its merits focuses on the alleged offence before the Court, and not the offender.

¶ 73  It would seem that a prior criminal conviction is more relevant to the offender than an alleged offence. Secondly, if an examination of prior criminal history became permissible on these applications, one could easily see how they could become protracted, and many issues would have to be resolved.

¶ 74  Would only prior convictions, as opposed to mere findings of guilt, be relevant? Does there need to be a temporal proximity between, or amongst, the offences?

¶ 75  Does there have to be a similarity in the nature of the offences? Is it relevant whether the previous findings stemmed from a plea of guilty or not? Is conduct short of a finding of guilty relevant?

¶ 76  Thirdly, in my respectful view, the Courts cannot be seen to be suggesting that an accused with a previous finding of guilt has any less of a right to a trial within a reasonable time than an individual who comes before the Court with no previous criminal history.

¶ 77  In the absence of extensive legal argument on this issue, I am reluctant to place much weight on the fact that Mr. V. has a 2001 entry for driving over 80.

¶ 78  In this regard, I do note that, notwithstanding that the Crown now takes the position that the prior conviction is an aggravating factor on this application, the Crown never assigned this case any apparent priority.

¶ 79  Mr. V. has demonstrated some specific prejudice attributable to delay that falls outside the Moran guideline. He has suffered significant anxiety that has required the long-term intervention of a psychotherapist.

¶ 80  Throughout, Mr. V. has demonstrated, through his own actions and those of his counsel, that he was anxious to have this matter moved along. While I appreciate it is preferable to have criminal charges heard on their merits, in the circumstances of this case I am persuaded that a violation of paragraph 11(b) of the Charter has been established.

¶ 81  In my respectful view, the appropriate and just remedy, as contemplated by subsection 24(1) of the Charter, is a stay of proceedings. The charge of driving "over 80" is stayed.

¶ 82  Now, Mr. Gayne, what you would not know is that there is also a H.T.A. Information before the Court, alleging an offence of speeding.

¶ 83  CROWN:  I would be content, if Your Honour has reasons, if they do apply, that they could be subsumed — that charge could be subsumed in Your Honour's ruling.

¶ 84  THE COURT:  Thank you, all right. And certainly, the defence did file a notice of application for the same type of relief, in respect of that charge, and the Court of Appeal has made it clear that I can apply the Moran criteria to a charge in the nature of a Provincial Offences Act infraction.

¶ 85  For much of the same reasons, then, as to why I stayed the "over 80" charge, I will also stay the speeding charge. Thank you.