R v Jayasekera

R. v. Jayasekera

2009 ONCJ 244
Ontario Court of Justice — Justice P. Robertson | May 26, 2009

Background

Rennie Jayasekera was arrested on November 11, 2007 for driving over 80mg. What should have been a routine impaired driving case turned into a nearly 18-month odyssey through the court system. The case proceeded normally through disclosure and pre-trial — but on the scheduled trial date of December 19, 2008, the Crown's breath technician called in sick the night before. The Crown got an adjournment, and the new trial date was set for May 6, 2009.

By the time the second trial date arrived, Jayasekera had had enough. He brought a Charter application under section 11(b), arguing that his right to trial within a reasonable time had been violated. The total delay from charge to trial was 17¾ months — well beyond what most lawyers would consider acceptable for a simple impaired driving case.

Issues

1. Was the total delay of 17¾ months unreasonable under section 11(b) of the Charter?
2. Should the 4½-month delay caused by the Crown's adjournment be attributed to Crown delay or considered neutral?
3. Did Jayasekera suffer sufficient prejudice to warrant a stay of proceedings?

The Delay Analysis

Justice Robertson applied the framework from R. v. Morin, breaking down the 17¾-month delay into categories. He found 2¾ months was reasonable "intake time" for the system to process the charge and provide disclosure. The 10½ months from when the parties were ready for trial to the original trial date was institutional delay — longer than the Morin guidelines, but not drastically so.

The key issue was the 4½-month delay caused by rescheduling after the Crown's witness got sick. The defence argued this should count as Crown delay, but Justice Robertson disagreed. Relying on R. v. Meisner, he found that unexpected illness of a key witness was one of those unforeseeable things that "happens from time to time in the criminal process for which no one can be faulted." The Crown had even offered 8 alternative trial dates within 6 weeks, but defence counsel wasn't available.

The court distinguished R. v. Smith, where the Crown repeatedly delayed proceedings to accommodate an officer's scheduled leave. Here, the illness was sudden and unexpected, and the witness was essential to prove the case — unlike in Smith where the officer was merely assisting the Crown.

The Prejudice Question

Jayasekera claimed the delay caused him anxiety and financial hardship. Justice Robertson found minimal inferred prejudice — the delay prolonged the stigma of criminal charges, but Jayasekera was released on a Form 10 with no restrictive bail conditions, and his driving suspension would have occurred regardless of trial timing. However, the judge did find some actual prejudice: because Jayasekera was "of modest means," having to pay his lawyer twice to prepare for trial caused real financial hardship.

Key Takeaway

Not every delay caused by the Crown counts as "Crown delay" — unexpected witness illness that forces an adjournment is considered neutral, especially when the Crown offers reasonable makeup dates.

This case shows that courts will distinguish between Crown delays caused by poor planning or indifference, versus delays caused by genuinely unforeseeable circumstances. If you're facing a Charter application, focus on delays the Crown could have prevented or controlled.