Ontario Criminal



Alleged prejudice given inordinate significance by judge

Appeal by Crown from order made due to violation of s. 11(b) of Canadian Charter of Rights and Freedoms. Proceedings were stayed against accused because he was not tried within reasonable period of time. On January 31, 2012 accused was charged with impaired driving and driving with blood alcohol level above legal limit. He was released on promise to appear with first appearance date of March 13. On April 18, 2012 trial date was set for February 6, 2013. Order under review was made on January 16, 2013. Judge assessed total institutional and Crown delay in this case at 10 months and five days. Appeal allowed. Stay was set aside and new trial was ordered before different judge. New trial was necessary because judge made several errors. He inaccurately assessed both inherent time requirements as well as institutional and Crown delay. He erred in assessing prejudice to accused’s security interests such that he found permissible time to trial was eight months rather than 10 months. Alleged prejudice was given inordinate significance by judge. There was no discernible prejudice to liberty or fair trial interests. Judge failed to consider societal interest in trial on merits. He failed to balance individual and state interests that s. 11(b) was designed to protect. Very substantial interest that society had in seeing alleged drinking and driving offences tried on their merits substantially outweighed interest of accused and society in prompt trial.

R. v. Murphy (Oct. 25, 2013, Ont. S.C.J., B.P. O’Marra J., File No. CR130000001100AP) 109 W.C.B. (2d) 624.

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