Theo's Case — over 80 & Impaired Driving — Stayed

Between
Her Majesty the Queen, and
Theo P.

Ontario Court of Justice
Oshawa, Ontario
Judge D.J. Halikowski

Stayed:  2 February 2009
(6 paras.)

¶ 1     D.J. HALIKOWSKI J. (orally):  The accused, Mr. Theo P., is before this Court for judgment on a section-11(b) Charter application which was brought by his counsel, Mr. Penney, alleging that there was unreasonable delay being sustained between the time of the laying of Mr. Theo P.'s charges and his date for trial. The facts generally are not in dispute. The accused was charged with impaired operation and over 80 care and control on the 25th of November of 2007. These are serious criminal charges that ought to be tried on the merits barring any reason revealed on this Charter application that would militate against such a disposition.

¶ 2     His first appearance was on the 11th of January, 2008. After some initial discussions and clarification, the defense sought and obtained the trial date of February the 2nd, 2009. The accused never appeared on any of his initial Court dates, opting to have his counsel appear on his behalf. The total delay involved, therefore is approximately 14 months of which 11.5 months can be attributed to institutional delay. Eleven and a half months is about one and a half months beyond the guidelines outlined in the Supreme Court of Canada case of the Queen and Morin, which was decided in the early 1990s, and which, coincidentally, was dealing with a case coming out of this very jurisdiction.

¶ 3     The accused has presented evidence of real prejudice in the form of medical evidence, indicating that midway through the process, and after his date for trial had been set, he began to suffer from depression and high anxiety, requiring the intervention of prescribed medication. For reasons that are not in evidence, this development was not brought to the Court's attention prior to this application having been filed. However, this could easily have occurred because the accused simply did not know he had the option of requesting an earlier trial date.

¶ 4     The institutional delay was caused by the neglect on the part of the state to replenish judicial resources that saw a lack of three justices for about three months prior to the accused being charged, and that was remedied only partially about six months later, and then finally when the last appointment was made in early 2009. The point is, the state was aware of the need for these resources all during that time period.

¶ 5     While the Morin case gives a guideline of eight to ten months in cases such as this where a remedy ought to be given, this case finds itself at least six weeks beyond that guideline, and has the added factor that the accused had actual prejudice caused to him by the delay itself.

¶ 6     The Court finds that the accused's section-11(b) rights were breached, and finds that given the circumstances of the accused having to sustain medical prejudice due to this delay, further finds that the administration of justice would be brought into disrepute if a stay was not ordered. The order will therefore go accordingly.

BACK TO THEO'S CASE