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Impaired Driving Refuse Breath Sample

In the following case, my client was charged with Impaired Driving and Refusing the police officers’ demand that he provide a breath sample. I was able to have the case “thrown out” on the basis that my client’s Charter right to trial within a reasonable time period (Section 11b) had been violated.  The judge found it took the Crown too long to bring the matter to trial and stayed out the charges.

1     T.R. LIPSON J.:– Mr. Dukhcharan applies for an order staying charges of impaired operation and refuse breath sample pursuant to sections 11(b) and 24(1) of the Charter.

Case history

2     The applicant was arrested on May 14, 2010 and charged with impaired operation and fail to provide a breath sample. He was released from the police station on a promise to appear with a return date of July 16, 2010. The information was sworn on May 17, 2010. The applicant retained counsel on May 25, 2010. On May 26, 2010 counsel faxed a disclosure request to the Crown which included a specific request for the breathalyser room DVD. At the first appearance on July 16, 2010 counsel attended and received initial disclosure which did not contain the DVD. The matter was adjourned to August 19, 2010. On July 19, 2010 counsel faxed a written request to the Crown for the DVD. Ten days later the Crown faxed counsel to say that the DVD had been ordered and would be provided at the next appearance. At the second appearance on August 19, 2010 counsel received further disclosure, including the DVD. The matter was remanded to September 16, 2010. On September 16, 2010 a Crown pre-trial and a judicial pre-trial were conducted. The earliest trial date available to the court was August 22, 2011. Counsel had earlier dates available. In an effort to obtain an earlier date counsel returned to court on October 14, 2010. Unfortunately the court could not offer an earlier trial date.

Principles to be applied

3     Section 11(b) of the Charter provides that “any person charged with an offence has the right … to be tried within a reasonable time.” In R. v. Morin [1992] S.C.J. No. 25, the majority of the Supreme Court of Canada held that the primary purpose of the provision is the protection of the rights of the accused to security of the person, liberty and a fair trial. Speaking for the majority, Justice Sopinka (at para. 28):

                    The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

4     Justice Sopinka recognized a secondary societal interest that is protected by section 11(b), namely, that those accused of crimes be brought to trial and dealt with according to law.

5     The decision as to whether s. 11(b) has been infringed is not to be made “by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.” Some delay is inevitable. The question is when is it unreasonable? That question is to be answered in light of the following (Morin, para. 31):

  1. the 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;

        4.  prejudice to the accused.


6     The Crown concedes that the total period of delay from the swearing of the information to the trial date of 15 months and 6 days warrants inquiry. The Crown also concedes that the applicant did not waive his section 11(b) right.

7     The parties agree that the period of May 17, 2010 when the information was sworn to the first appearance date of July 19, 2010 should be characterized as neutral intake. As well the period from August 19, 2010 to September 16, 2010 is also seen by Crown and defence as neutral intake. The parties also agree that the period of 11 months and 6 days between September, 16, 2010 when the trial date was set and the trial date of August 22, 2011 is institutional delay.

8     In dispute is the proper attribution of the one month period between July 19 and August 19, 2010. That period of delay was to allow the Crown the opportunity to complete its disclosure obligation, particularly by providing the defence with the DVD of the applicant’s attendance in the breath room at 41 Division. There is no issue that the DVD constitutes essential disclosure. Counsel for the applicant argues that this period of delay should be attributed to the Crown. The Crown argues that this period of delay is attributable to the inherent time requirements of the case and should be considered neutral.

9     It is important to note that here disclosure request for the DVD was made by counsel on May 25, 2010, well before Mr. Dukhcharan’s first court appearance of July 19. 2010. Despite the two month gap between the applicant’s arrest and the first appearance in this matter, it took an additional month to provide the DVD to the defence. Crown counsel could offer no explanation why this was so. I agree with the applicant’s submission that additional month delay should be attributed to the Crown.

10     It was not unreasonable for the defence to adjourn the case from August 19, 2010 when disclosure was completed to September 16, 2010. During that period counsel was obliged to review the disclosure, consult with his client and any potential witnesses, conduct a Crown pre-trial and prepare for the judicial pre-trial. That period of delay is properly characterized as neutral intake.

11     The operative delay in this case is therefore 12 months and 6 days.

12     Counsel for the accused does not argue that any special or specific prejudice exists in this case. There is, of course, inferred prejudice from the lengthy delay. There is no suggestion on this record that the applicant in any way tried to delay his trial. On the contrary, the applicant, through his counsel, acted expeditiously to obtain full disclosure, conduct the necessary pre-trials and set as early a trial date as possible. Even after setting a trial date, counsel appeared on a subsequent interim date to attempt to secure an even earlier trial date.

13     In determining whether there has been unreasonable delay, the court is required to take a balancing approach. Section 11(b) is designed to not only protect an individual’s right to be tried within a reasonable time but also the community’s interest in having those who commit crimes tried quickly and fairly. This is a straight forward drinking and driving case where the delay is some two months and six days outside the upper range suggested in the Morin guidelines. There is inferred prejudice. Crown delay in disclosure and limits on institutional resources account for but, of course, cannot justify the delay in this case. Having weighed the Morin factors, I am satisfied that the applicant has established that his right to be tried within a reasonable time has been violated. In the result, the charges before the court are stayed pursuant to section 24(1) of the Charter.



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