Borat's Case — Speeding & Fail to Stop — Dismissed

Between
Her Majesty the Queen, and
Borat A.

[2006] O.J. No. 3415

Ontario Court of Justice
Newmarket, Ontario
Justice of the Peace Walker

Stayed:  14 July 2006
(36 paras.)

¶ 1     WALKER J.P. (orally):  The applicant and defendant in this matter, Borat A., seeks a remedy pursuant to sections 11(b) and 24(1) of the Charter of Rights and Freedoms for what his counsel, Mr. Penney, argues is an unreasonable delay in the matters being brought to trial.

ś 2     Mr. Borat A. was charged on June 23rd, 2005, with two offences, speeding at the rate of 160 kilometres per hour in a 100 kilometre per hour zone and failing to stop for police, both of which are infractions under the Highway Traffic Act.

ś 3     The defendant was issued summonses by Police Constable Flintstone at the scene and on the offence date, both returnable on the fifth of August, 2005, a first appearance date. On that date, the defendant was not present; however, he was represented by counsel, Mr. Penney.

ś 4     The transcript of those proceedings reveals that Mr. Penney was prepared to set a trial date and that he asked for the nearest available date. Mr. Brencis, for the prosecution, suggested the tenth of January of 2006, which was agreed to by Mr. Penney.

ś 5     It should be noted that, in this jurisdiction, it is the provincial prosecutor's office that manages the setting of trial dates. This to my understanding and my experience is because of the limitations on the availability of court time in what is a high-volume jurisdiction for offences of the nature the defendant faces.

ś 6     There is recourse to the trial co-ordinator. I am not certain if that recourse came into play in this case as there is nothing on the record to indicate so.

ś 7     Mr. Penney did state, however, on August 5th, 2005, that if the matters did proceed to trial a full three hours would be required. In the end result, the two afternoon tiers, half a day, were set aside.

ś 8     On January 10th, 2006, Mr. Penney, counsel, attended Court with the defendant, Mr. A., ready to proceed to trial. A transcript of those proceedings shows that Mr. Brencis for the prosecution had apprised Mr. Penney that there was additional evidence to be called or introduced by the prosecution concerning the speeding charge. This had not been disclosed as yet to the defence. Mr. Penney sought an adjournment on the basis that he needed to obtain the information in question and review it. The adjournment was granted and noted on the information as being at the request of the defence. A new trial date was set, once again managed by the prosecution, of June 22nd, 2006. it was on that date that I heard the argument regarding the application before me.

ś 9     There is an abundance of case law concerning section 11(b) and section 24(1) Charter applications which guides me in my evaluation and in my decision.

ś 10     R. v. Morin, a hallmark decision from the Supreme Court of Canada rendered in 1992, is about an impaired driving and over 80 case in which a delay of 14 months was found not to be unreasonable.

ś 11     In Morin, the now well-established factors in analyzing at what point the delay becomes unreasonable were set out as they were in other decisions, notably R. v. Smith, R. v. Askov. They are as follows: one, the length of the delay; two, waiver of time periods; three, reasons for the
delay, including inherent time requirements of the case, the actions of the accused, the actions of the Crown, limits on institutional resources, and other reasons for the delay; and, lastly, prejudice to the accused. These factors must be balanced or weighed in order to determine if the length of delay is a reasonable one or an unreasonable one.

ś 12     The intake period, as it is called, is also discussed in R. v. Morin, amongst other cases. In this particular matter, I view it as a period of time from the offence date of June 23rd, 2005, to the first appearance date of August 5th, 2005; hence, a little less than six weeks.

ś 13     What follows is my analysis.

ś 14     First of all, the length of the delay. From the offence date of June 23rd, 2005, to the second trial date of June 22, 2006, is 12 months shy one day.

ś 15     The intake period of about six weeks ought not be a consideration unless it is an unreasonable one.

ś 16     Mr. Penney refers me to a document entitled "Criminal Case Management Protocol" dated September 9th, 2004, prepared by the Criminal Justice Steering Committee. That document recommends that on a criminal charge the first appearance date should be no later than four weeks from the date of arrest.

ś 17     I am guided by once again Morin amongst others in this consideration — that the length of time necessary for the intake period will be influenced by local practices and conditions and should reflect that fact. To be borne in mind is that this protocol document makes recommendations only.    

ś 18     I do not find that the intake period of approximately six weeks or a little less in Mr. Borat A.'s case to be an unreasonable one. Therefore, it does not factor in or figure into my analysis concerning delay.

ś 19     I calculate, therefore, the total amount of time meriting considerations in this application to be ten months plus 17 days.

ś 20     Waiver of time periods. In reviewing the transcripts and the information I find there has been no section 11(b) Charter waiver on the part of the defence. While Mr. Penney did on the first date of January 10th, 2006, seek an adjournment it was on the basis that there was new information to be disclosed to him and his client.

ś 21     While the adjournment may have been noted at the request of the defence — indeed it was on the information — the prosecution has an absolute and ongoing obligation to disclose all relevant materials to the defence. The materials in question were clearly relevant. The defendant is entitled pursuant to the Charter to make full answer and defence.

ś 22     I concur with my colleague, Justice of the Peace Conacher in his decision of August 2004 in R. v. Rowan, [2004] O.J. No. 3504, that the adjournment was one necessitated by the requirement to receive full disclosure. Therefore, the period of time between January 10th, 2006, and June 22, 2006, cannot be a
delay attributed to the defence.

ś 23     Reasons for the delay. First of all, inherent time requirements. Three hours were set aside at the request of the defence for this case. While somewhat outside of the norm for Highway Traffic Act matters, it does not enter into the realm of "lengthy". This matter is something that should be able to be accommodated within a reasonable period of time. As I understand it, there was to be a sole witness for the prosecution, perhaps two based on the prosecution's representations on January 10th of 2006. Nonetheless, it is not in my view a complicated case in the scheme of those heard in this Court.

ś 24     The actions of the accused or the defendant. I find no fault whatsoever in the actions of the defendant. He retained counsel quickly and there was an expressed interest for the matter to proceed to trial quickly.

ś 25     The actions of the Crown. I do not find that the Crown was in any way dilatory in attempting to have the matter proceed to trial on the earliest date possible. The Provincial Prosecutor's Office appears to be hampered by the lack of available Court time and other resources. Things beyond its control.

ś 26     As for the issue of further disclosure, it would seem that based on the transcript and what I have heard by way of argument this was something that came to Mr. Brencis on or about the last trial date — the last trial date meaning the January trial date.

ś 27     As I had stated, the delay from the first trial date to the second is not one that can be attributed to the defendant.

ś 28     Limits on the institutional resources. This is no doubt that there are limitations on the institutional resources in this region. It is one that is growing rapidly. In R. v. Morin, a guideline of eight to ten months is suggested while deviations of several months in either direction might be justified depending on the circumstances.

ś 29     Morin was a case dealing with delay in Criminal Code charges, of course. Here I am deciding upon an alleged delay for less serious offences. I am guided by decisions such as that in R. v. Farosh Shadfar, [2001] O.J. No. 6015, a decision from the Provincial Offences Appeals Court in which Justice Libman stated:  "The very short time lines that govern under the Provincial Offences Act make it clear that speedy justice is the hallmark of proceedings under this Act."

ś 30     Lastly, prejudice to the accused or the defendant.

ś 31     In this matter the defendant testified under oath and an affidavit was also filed as to the prejudice he feels he has suffered as a result of the delay in question. This is something to be considered above and beyond any inferred prejudice that is from the length of the delay itself.

ś 32     Mr. Borat A. testified that he has been in a state of perpetual worry — that his work obligations have suffered as a result of the charges. In his affidavit, he speaks about the costs of defending himself by retaining Mr. Penney and about his desire to have the matter dealt with as quickly as possible.

ś 33     Mr. Penney has also argued that the provisions of section 216 of the Highway Traffic Act — which concerns the charge of failing to stop for police and which provide for upon conviction, depending on the evidence led, a possible period of imprisonment of not in excess of six months — result in further prejudice to the defendant because of the potentially serious consequences upon conviction.

ś 34     I do find in the end result that the delay has caused some prejudice to the defendant above and beyond the inherent prejudice caused by the length of the delay itself.

ś 35     My disposition in this case. In applying the test set out in R. v. Morin, I find that on balance Mr. A.'s rights to a trial within a reasonable time have, in fact, been violated.

ś 36     I therefore grant him the remedy pursuant to section 24(1) of the Charter that has been sought. The proceedings are stayed.

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