Giselle's Case — Excessive Delay — Written submissions

PART I - STATEMENT OF THE CASE

1. By an information sworn 23 November 2000, the Applicant is charged that on 18 November 2000 she "refuse[d] to comply with a demand … that she provide forthwith a sample of her breath … necessary to enable a proper analysis of her breath to be made by means of an approved screening device."

2. The Applicant alleges a breach of her right to have her trial within a reasonable time as provided by section 11(b) of the Canadian Charter of Rights and Freedoms. As a remedy under section 24(1), she seeks a stay of these proceedings.

PART II - SUMMARY OF THE FACTS

3. The history of this matter is outlined in the following table reproduced from the supporting affidavit.

DATE	MATERIAL EVENT
18 November 2000	Investigation Completed: The Applicant was stopped by the police. She was asked to provide a sample of her breath into a roadside screening device. She was charged with refusing to provide a breath sample a short time later, and was released with an Appearance Notice (form 9). The investigation was uncomplicated, and was completed that day.
19 November 2000	Counsel Retained: The Applicant contacted and retained her current lawyer, Mr. Craig J. Penney.
5 January 2001	1^st Court Date – Trial and Judicial Pre-trial Scheduled: The Applicant attended the Court house with Mr. Penney. The Applicant received her disclosure. Mr. Penney had a pre-trial with Assistant Crown Attorneys Ms Rosella C. and Ms Sylvano C. Although further disclosure was requested, the Applicant wanted to immediately schedule the trial date. Mr. Penney attended at the trial coordinator’s office, and requested the earliest available trial date. The Applicant scheduled her trial for 14 September 2001. The Applicant also scheduled a judicial pre-trial for 13 March 2001.
25 January 2001	Additional Disclosure Received: The Applicant received additional disclosure by fax, thereby completing the disclosure.
13 March 2001	2^nd Court Date – Judicial Pre-trial: Mr. Penney attended a judicial pre-trial with Assistant Crown Attorney Ms Sylvano C. and Her Honour Madame Justice Ray. Both the Crown and the defence confirmed that they were ready to proceed. Mr. Penney indicated that there would be expert evidence called by the defence, and agreed to consider providing the expert’s report in advance of the trial. The Applicant then appeared in Court to confirm the September 14^th trial date.
29 March 2001	Crown Adjournment Application: The Crown faxed the Applicant a Notice of Application requesting that the matter be adjourned because of a conflict with police leave dates. That application and the supporting affidavit (sworn and served 20 April 2001) is attached as Exhibit "A".
12 April 2001	3^rd Court Date – Crown Adjournment Application: The Applicant attended Court. She opposed the adjournment application. The application was adjourned to 26 April 2001 to allow the Crown time to file further material for the application.
20 April 2001	Crown Affidavit Received: The Crown faxed the Applicant the supporting affidavit for the adjournment application. That affidavit with cover letter is attached as part of Exhibit "A".
26 April 2001	4^th Court Date – Crown Adjournment Application: The Applicant opposed the adjournment. However, when the trial coordinator offered an earlier trial date of 5 June 2001, the Applicant agreed to the earlier trial date.
22 May 2001	Expert Report to Crown: As soon as practicable after receiving the report from the defence expert, Mr. Penney mailed Assistant Crown Attorney Ms Sylvano C. the three-page expert’s report. That letter and the three-page report are attached as Exhibit "B".
5 June 2001	5th Court Date – 2^nd Trial Date: Assistant Crown Attorney Ms W. was assigned to the matter that morning. Unfortunately, she was not in possession of the expert’s report Mr. Penney had sent on May 22^nd. Before Court commenced, however, Mr. Penney provided her with another copy of the expert’s report. Crown Adjournment Request: The Crown argued before the trial judge that, in addition to not being ready to cross-examine the defence expert or call rebuttal evidence, it was also not prepared to prove even its own case. The trial judge granted the adjournment, but marked it pre-emptory on the Crown to proceed on the next day.
12 June 2001	6th Court Date – 3^rd Trial Date Scheduled: The trial is scheduled for the earliest available date, 24 January 2002.
30 November 2001	Judicial Pre-trial: Mr. Penney attends a judicial pre-trial meeting with Assistant Crown Attorney Mr. Jonathan McGrath., the assigned Crown, and His Honour Mr. Justice Otter. Mr. McGrath indicated that the Crown would not be calling expert evidence. 7^th Court Date: The Applicant confirmed the trial date for 24 January 2002.

Affidavit Re History of Matter

PART III - ISSUES AND THE LAW

Section 11(b) — Test for Unreasonable Delay

4. In Morin, Mr. Justice Sopinka, writing for the majority, outlined the following factors which are to be considered when analyzing whether there has been a breach of section 11(b) of the Charter:

a. the length of the delay;

b. waiver of time periods;

c. the reasons for the delay, including

i. inherent time requirements of the case;

ii. actions of the applicant;

iii. actions of the Crown;

iv. limits on institutional resources; and

v. other reasons for the delay, and

d. prejudice to the applicant.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 13 (S.C.C.)

a. The Length of the Delay

5. The Applicant was arrested on 18 November 2000. Her trial is scheduled to commence on 24 January 2002. The total delay is 14 months and 6 days.

Affidavit Re History of Matter, Tab 3

6. This delay is prima facie unreasonable and warrants an inquiry into reasons for the delay.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 14-15 (S.C.C.)
R. v. Meier, [1998] O.J. No. 3489, (Ont. Ct J.), p. 2, par. 8

b. Waiver of Time Periods

7. The Applicant did not by agreement or other conduct waive her section 11(b) Charter rights.

Affidavit Re History of Matter, Tab 3

c. Reasons for the Delay

8. Since this application cannot "be resolved by reason of the principles of waiver, the Court will have to consider the other explanations for delay."

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 16 (S.C.C.)

c. Reasons for the Delay — i. Inherent Time Requirements

9. This inquiry is concerned with delay factors which flow from the nature of the matter, including the complexity of the case and the intake requirements (e.g., time to retain counsel). The Court's task is to determine a realistic time period for the preparation of a particular type of case, having regard to the number of accused, the number of charges, and the complexity and volume of evidence, if fully adequate institutional resources were available to the police, the Crown's office, and other governmental agencies involved in the investigatory and prosecutorial process.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 16-17 (S.C.C.)

10. The Applicant’s matter is not complex. The investigation was completed on the day of the Applicant's arrest.

Affidavit Re History of Matter, Tab 3

11. The complexity of the Applicant’s matter is similar to that of the accused in Morin, where "the preparation of the case for the prosecution was essentially complete by the time the accused was released from custody shortly after her breathalyser test." In Morin, the Court determined that the inherent time requirements were two months.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 25 (S.C.C.)

12. It is respectfully submitted, therefore, that the inherent time requirements for the Applicant's matter are 2 months.

c. Reasons for the Delay — ii. Actions of the Applicant

13. Included in this category are all voluntary actions of the Applicant which may have caused delay, such as change of venue motions, attacks on wiretap packets, attacks on search warrants, and adjournments which do not amount to waiver.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 17 (S.C.C.)

14. After the Crown’s adjournment application was granted on 5 June 2001, the Applicant requested a brief adjournment to 12 June 2001 in order to ascertain the leave dates for the Applicant’s expert witness. The Applicant accepts responsibility for these seven days.

c. Reasons for the Delay — iii. Actions of the Crown

15. His Lordship Mr. Justice Sopinka explained the nature of this inquiry in Morin: "[a]s with the conduct of the Applicant, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the [Crown] which delay the trial may be investigated."

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 18 (S.C.C.)

16. The primary action of the Crown which caused delay was its request for an adjournment on 5 June 2001. This request was made because of the Crown’s failure to assign a Crown until the morning of the trial, and the Crown’s failure to review the expert’s report in advance of the trial. As a result of the Crown’s request, the matter was adjourned, but it was marked pre-emptory on the Crown to schedule a new trial date.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 18 (S.C.C.)
Affidavit Re History of Matter, Tab 3

17. The adjournment on 5 June 2001 ultimately resulted in an additional 7 months and 19 days of delay. However, not all of this time is attributable to the Crown. (As indicated above, for example, the Applicant accepts responsibility for seven of these days.) Neither the Crown nor the Applicant wanted the matter adjourned for such a long period of time.

18. For the reasons discussed, infra, the Applicant respectfully submits that the portion of the delay directly attributable to the Crown’s actions is 1 to 1.5 months.

c. Reasons for the Delay — iv. Limits on Institutional Resources

19. A portion of the delay of 7 months and 9 days, which resulted from the Crown’s adjournment request on 5 June 2001, is attributable to limits on institutional resources. When an adjournment such as the one requested is granted – as it may be from time to time – the judicial system ought to be able to respond by providing a new trial date in a reasonable period of time. For example, when the Applicant’s second trial date was scheduled on 26 April 2001, there was only a six week adjournment, the trial being scheduled for 5 June 2001.

R. v. Soares, [1996] Q.L. - O.J. No. 2403 (Ont. Ct. (G.D.)), Tab 15

20. Although a party requests an adjournment, the totality of the resulting delay may not be attributable to that party.

R. v. Maracle (1998), 122 C.C.C. (3d) 97 @ 99 (S.C.C.), Tab 14

21. Therefore, with inherent time requirements accounting for 2 months of the delay, the Crown’s actions accounting for 1 to 1.5 months of delay, the total institutional delay is 10.5 to 11 months.

c. Reasons for the Delay — v. Other Reasons for Delay

22. There are no other reasons for the delay.

d. Prejudice to the Applicant — The General Approach

23. It is respectfully submitted that this Honourable Court ought to examine the following three areas to determine what prejudice, if any, the Applicant has suffered. First, the length of the delay must be examined, as prejudice may be inferred solely from the length of the delay. Secondly, the Applicant's actions must be examined to determine what inferences, if any, are to be drawn from the Applicant's conduct. Thirdly, the Court must consider the direct evidence, if any, of the prejudice the Applicant has suffered.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 23ff (S.C.C.)
R. v. Meier, [1998] O.J. No. 3489, (Ont. Ct J.), p. 4, par. 23

d. Prejudice to the Applicant — i. Length of Delay

24. The total delay is 14 months and 6 days. It is respectfully submitted that the Court may infer that any person without a criminal record would suffer prejudice by having criminal charges pending for that length of time.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 23 (S.C.C.)

d. Prejudice to the Applicant — ii. Actions of the Applicant

25. Accused persons have no obligation to expedite their trials, as it is the Crown's responsibility to bring them to trial. However, action or inaction on the part of the accused can be taken into account when assessing whether that accused has suffered prejudice.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 24 & 28 (S.C.C.)

26. It is respectfully submitted that the Applicant has been diligent throughout these proceedings, and that her actions have consistently demonstrated a desire for a timely trial on the merits. Witness, for example, the following:

the Applicant retained counsel the day after she was charged;
the Applicant appeared at the very first court date ready to schedule her trial date;
upon receiving the disclosure at the first Court appearance, the Applicant immediately reviewed it, conducted a pre-trial with the Crown, and then scheduled a trial date;
the Applicant’s various requests for the earliest available trial dates;
the Applicant’s opposition to the Crown’s first adjournment application on 12 April 2001;
the Applicant’s steadfast refusal to consent to the same adjournment application on 26 April 2001 – which resulted in the trial date being moved forward from 14 September 2001 to 5 June 2001;
the Applicant’s opposition to the Crown’s adjournment application on 5 June 2001;
the Applicant provided the Crown with the expert’s report in advance of the trial; and
the Applicant’s consistent requests for the earliest available trial date.

Affidavit Re History of Matter, Tab 3
Applicant's Affidavit Re Prejudice, Tab 4

27. As Justice Moore held in Meier, "it is somewhat important that Mr. Meier, prior to his first appearance in Court, retained counsel. I think that in and of itself indicates a concern with the matter and a concern that the matter get dealt with in a proper fashion."

R. v. Meier, [1998] O.J. No. 3489, (Ont. Ct J.), p. 3, par. 20

d. Prejudice to the Applicant — iii. Direct Evidence of Prejudice

28. It is respectfully submitted that the Applicant has suffered prejudice to her security interest. It is further submitted that this Honourable Court may rely upon that type of prejudice. As explained by His Lordship Mr. Justice Sopinka,

[p]rejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to ‘the vexations and vicissitudes of a pending criminal accusation’

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 24 (S.C.C.)

29. It is respectfully submitted that the pending criminal charges has caused the Applicant stress and anxiety.

Applicant's Affidavit Re Prejudice, Tab 4

d. Prejudice to the Applicant — iv. Conclusion

30. The Applicant's direct evidence of prejudice is buttressed by the inference that may be drawn, firstly, as a result of the length of the delay, and, secondly, as a result of the Applicant's vigilant and consistent actions in her quest for a timely trial on the merits. Considering the totality of above factors, it is respectfully submitted that this Honourable Court ought to find that the Applicant has suffered prejudice as a result of the delay.

Conclusion — Breach of Section 11(b)

31. The Applicant submits that the delay can be broken down as follows:

Total delay: 14 months; 6 days
Waiver of time periods: none
Inherent time requirements: 2 months
Delay due to the Applicant's actions: 7 days
Delay due to Crown's actions: 1 to 1.5 months
Institutional Delay: 10 to 11.5 months
Other reasons for the delay: none

32. The Applicant respectfully submits that the delay of 12 months – attributable to both the Crown and limits on institutional resources – is excessive.

33. In conclusion, the Applicant respectfully submits that, having regard to the totality of factors this Court must consider, the total delay is unreasonable, and breached the Applicant's rights under section 11(b) of the Canadian Charter of Rights and Freedoms.

PART IV - ORDER REQUESTED

34. It is respectfully requested, therefore, that these proceedings ought to be stayed pursuant to subsection 24(1) of the Charter.

RESPECTFULLY SUBMITTED THIS 12TH DAY OF DECEMBER 2001.

Craig Penney, Counsel for the Applicant

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