ONTARIO SUPERIOR COURT OF JUSTICE. Appellant ) Respondent ) ) HEARD: May 1, 2008

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1 COURT FILE NO.: 07-CR ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN George Spartinos, for the Appellant Appellant - and - JEREMY CLIFFORD ATKINSON Frank Miller, for the Respondent Respondent HEARD: May 1, CanLII (ON S.C. TAUSENDFREUND, J. Overview [1] On March 19, 2006 the respondent was charged with impaired driving and over 80, contrary to ss. 253(a and (b C. C. C. respectively. On May 23, 2007, the trial judge found there was a systemic delay of 11 months and concluded that the rights of the respondent under s. 11(b of the Charter to a trial within a reasonable time were violated and granted a stay of these charges under s. 24(2 of the Charter. The Crown appeals.

2 - 2 - Chronology [2] On March 19, 2006 an O.P.P. constable pulled over the respondent s motor vehicle at the Town of Tecumseh in the Southwest Region. A civilian had observed the respondent driving erratically and called 911. The attending O.P.P. constable observed the respondent s vehicle drift onto the shoulder of the roadway. After stopping the respondent, he noticed his face was red and flushed, his eyes were red and glassy, he slurred his words and had a strong odour of alcohol on his breath. The respondent was charged and released on a promise to appear on April 25, CanLII (ON S.C. [3] The case was adjourned on April 25 to May 16, 2006 to obtain and review disclosure. [4] On May 16, 2006 both Crown and defence were in a position to set a trial date. However, due to the local custom in Windsor, a trial coordinator was not present on that date and this resulted in the matter being put over to May 23, On that date the trial coordinator was in attendance. The matter was set for trial to January 15, 2007 which was the first available date as offered by the trial coordinator. [5] On January 15, 2007 the matter was called to trial. The respondent was ready to proceed. The Crown requested an adjournment, as an essential Crown witness was not available. It appeared that the witness had been improperly served by leaving a copy of the subpoena with a third party. The adjournment at the request of the Crown was granted. The matter was put over to January 23, 2007 to set a new trial date. [6] On January 23, 2007 the matter was set over for trial to April 16, 2007 which was the first available trial date, although both Crown and defence were available as early as late January. [7] On April 16, 2007 the court heard a defence application for a stay of the charges, on the basis of s. 11(b delay. In support of his Charter application, the respondent adduced the following evidence of prejudice resulting from the delay:

3 - 3 - (a As time went on, and in particular, after January 2007, more persons found out about the charges causing greater embarrassment. (b The stress of the unresolved charges increased. (c The respondent found it increasingly difficult to recall important details. His memory was fading and this, in turn, caused the respondent to have more difficulties sleeping after the January adjournment. (d The respondent incurred additional expenses in the form of legal fees associated with the delay CanLII (ON S.C. (e The respondent was engaged to be married. His ability to plan for that marriage had been disrupted and affected by the escalating legal costs associated with the delay. (f The continuing delay and uncertainty prevented the respondent from accepting a position of employment offered to him in the [8] The respondent s evidence of prejudice was not countered or challenged by the Crown and as such, was accepted by the trial judge. [9] The learned trial judge concluded that the period of institutional delay was from May 16, 2006 to April 16, 2007, a total of 11 months. He attributed none of that delay to the actions of the respondent. Further, the learned trial judge attributed the adjournment of the trial from January 15, 2007 to April 16, 2007 to the Crown s failure to personally serve the witness with a subpoena. While including this time period as part of the institutional delay which he had already found, he indicated that this aspect of the delay was less tolerable than ordinary institutional delay. The learned trial judge on this point noted: I was bothered by the fact that the adjournment, which led to the additional three-month delay, arose because an essential witness was not available and it would appear that this may have been because the witness was not served personally this additional delay may have been unnecessary if the witness had been served personally in the first instance.

4 - 4 - I will also add here that if this had been a situation where a witness had been properly served, but failed to attend, and there was no prejudice to the accused, then I would have had no hesitation in concluding that 11 months, while marginally outside of what would otherwise be considered to be the tolerable period permissible for institutional delay, was nevertheless still reasonable. However, when the period of institutional delay is brought beyond what otherwise might be considered reasonable, and circumstances exist to suggest the delay was compounded by the failure to follow proper procedure, such as, how to effect personal service, and there is corresponding evidence of prejudice, then under the circumstances, the delay is not to my mind justifiable as the accused person has been denied his right to be tried within a reasonable period of time. 1 [10] The learned trial judge concluded that: 2008 CanLII (ON S.C. having regard to the authorities and the availability of trial dates locally, it would appear that a period of nine months from set date to trial would be reasonable I have already identified the systemic or institutional delay of 11 months as being attributable to the Crown. No part of that delay is, in my view, attributable to the accused. 2 [11] The learned trial judge granted the respondent s application for a stay under s. 24(2 of the Charter. Analysis [12] At the start of this appeal, the Crown conceded that it would not pursue the position that the respondent waived part or all of the delay. [13] A s. 11(b analysis requires the court to balance the individual and societal goals with the length and causes of the delay. 3 [14] Four factors are critical: (a Length of the delay. 1 Transcript May 23, 2007 pp. 18 and 19 2 Transcript May 23, 2007 p R. v. Morin, [1992] S.C.J. No. 25 (S.C.C. R. v. Seegmiller, [2004] O.J. No (Ont. C.A. para. 10 R. v. Sychterz, [2005] O.J. No (O.S.C.J. para. 25

5 - 5 - (b Any waiver by the accused of the time periods. (c The reasons for the delay. (d Any prejudice to the accused. 4 Length of Delay [15] It is unchallenged by the Crown that the length of the delay is at least ten months and three weeks. The appellant takes the position that a trial date could and should have been set on May 16, 2006 when the trial coordinator was not present, but the Crown was in a position to set a trial date. The matter was put over for one week to May 23, at the request of counsel for the respondent. In my view, nothing turns on the issue of the one week delay in deciding whether or not the entire delay was constitutionally unreasonable CanLII (ON S.C. Waiver by Accused [16] As stated, this position is not advanced by the appellant. Reasons for the Delay [17] The reasons, as found by the trial judge, are a combination of institutional delay and a three month delay from January 15 to April 16, 2007, caused entirely by the Crown s failure to properly serve its witness. [18] The Supreme Court of Canada indicated a period of 8 to 10 months between committal and trial as not unreasonable. 5 In addition, it is open to a trial judge to conclude that an acceptable period of institutional delay for an uncomplicated, routine trial should be at the lower end of this range. 6 The evidence of this case would indicate that it was uncomplicated and mainstream. [19] The trial judge held as follows: 4 R. v. Seegmiller, [2004] O.J. No (Ont. C.A. para. 11

6 - 6 - Having regard to the authorities and the availability of trial dates locally, it would appear that a period of nine months from set date to trial would be reasonable. 7 Prejudice to the Accused [20] Based on the evidence adduced on behalf of the respondent, the trial judge noted: I am persuaded that there has been some prejudice to Mr. Atkinson associated with delay of this proceeding. 8 The evidence of prejudice adduced by the respondent was not challenged or rebutted by the appellant CanLII (ON S.C. [21] The appellant argues that the trial judge held that the Crown had an onus to show absence of prejudice against the accused. I disagree. Having already made a finding of actual prejudice, the learned trial judge held that in the face of such a finding, prejudice was established, absent a successful challenge of such evidence by the Crown. 9 Standard of Review [22] Relying on R. v. Sychterz, supra, at para. 72, the appellant urges that the s. 11(b issues may be examined afresh and that the deference generally afforded a trial judge should not be applicable in this case. The appellant suggests that such a review is open to this court based on errors made by the trial judge. However, I do not accept the appellant s proposition that the trial judge made any errors which would permit a proposed fresh examination. I reject the appellant s proposition in that regard. [23] The standard of review of assessing the various periods of delay, ascribing legal character to them and allocating them to the various categories provided for, is one of correctness R. v. Morin, supra, at para R. v. Bandeen, [2005] O.J. No (O.S.C.J. at para Transcript May 23, 2007 p Transcript May 23, 2007 p.18 9 R. v. Morin, supra, para R. v. N.N.M., [2006] O.J. No (C.A. at para. 6

7 - 7 - [24] Although an appellant court may not agree with all the comments of the trial judge, if his finding is not unreasonable in all of the circumstances of this case, there is no basis for appellate intervention. The standard of review is one on palpable and overriding error. 11 [25] I find that the learned trial judge carefully considered all of the relevant factors referred to by the Supreme Court of Canada in Askov and Morin and that he made no error in the manner in which he exercised his discretion. Accordingly, this appeal court should not interfere with the discretion exercised by the trial judge. 12 [26] The appeal will be dismissed CanLII (ON S.C. Justice W. U. Tausendfreund Justice W. U. Tausendfreund Released: July 16, R. v. Byron (2001, C.C.C (3d 312 (Man. C.A. at para R. v. Miracle, [1998] S.C.J. No. 7 (S.C.C. para. 1