R v DeSouza

R. v. DeSouza

2016 ONCJ 588
Ontario Court of Justice — Justice Joseph F. Kenkel | October 3, 2016

Background

Paulo DeSouza was charged with two drinking and driving offences in Newmarket. What should have been a straightforward one-day trial turned into a 15-month ordeal spanning three separate trial dates. The defence requested disclosure within days of the charges being laid and consistently pushed to move the case forward. On the first trial date, DeSouza's case wasn't reached due to Newmarket's "triage system" — a scheduling method that optimizes court time but occasionally bumps cases. On the second trial date, the trial was set to start at 9:30 a.m., but the assigned Crown prosecutor wasn't available until 10:45 a.m. because they were sent to handle another matter first. This delay meant the trial couldn't be completed that day, forcing a third trial date three months later.

By the time the third trial date rolled around, DeSouza's lawyer had had enough and brought an application under section 11(b) of the Charter, arguing his client's right to be tried within a reasonable time had been violated.

Issues

1. Whether 15 months of delay for a simple impaired driving case violated DeSouza's Charter right to trial within a reasonable time
2. How to apply the new Jordan framework to delays that fall below the presumptive ceiling

The Jordan Framework Analysis

The case was decided shortly after the Supreme Court's landmark decision in R. v. Jordan, which established new rules for analyzing trial delay. Under Jordan, provincial court cases have an 18-month "presumptive ceiling" — delays above that are presumptively unreasonable. DeSouza's case, at 15 months, fell below this ceiling, but Justice Kenkel found that didn't end the analysis.

For cases below the ceiling, the defence must prove two things: (1) they took meaningful steps to expedite proceedings, and (2) the case took "markedly longer" than it should have. The court found DeSouza easily met the first test — requesting disclosure immediately and consistently pushing for progress. The real question was whether 15 months was "markedly longer" than reasonable for this type of case.

Justice Kenkel looked at local considerations and noted that previous Court of Appeal decisions had found 9 months of institutional delay was the limit for most impaired driving cases in this jurisdiction. He found three trial dates for a one-day matter "exceptional" and criticized the Crown for not taking reasonable steps to expedite the proceedings. The judge was particularly critical of the Crown's failure to prioritize the case on the second trial date, noting that with multiple Crown witnesses, it was obvious the case would take the full day as scheduled.

Key Takeaway

Even delays below Jordan's 18-month ceiling can violate your Charter rights if the case took markedly longer than it should have given its complexity.

Simple cases shouldn't drag on just because there's now a higher ceiling — courts will still look at what's reasonable for that specific type of case. If you're facing delays, document your efforts to move the case forward and don't assume you're out of luck just because you're under 18 months.