A stop sign that says "DUI" on it instead of "STOP"A Sudbury man has lost a bid to have drunk driving charges tossed because they took too long to be resolved at trial.

Ontario Court Justice Andre Guay ruled he did not find any unreasonable delay in the case against Michael Mahaffy, 55. As a result, Justice Guay dismissed Mahaffy’s charter challenge.

In fact, Guay blamed defence lawyers for the delays that followed the case.

“In my view the Crown has more than met the onus of establishing the occurrence of ‘exceptional circumstances’ causing the delay which occurred in this case,” wrote Guay. “The evidence in this trial was ‘particularly complex’ as were the novel scientific theories floated by the defence toxicologist.

“Under all of the circumstances, I do not find there was any unreasonable delay in this matter. The accused sought out very experienced counsel and relied on all of the arguments available to him to defend himself against the charge under section 253 (1) (b) of the Criminal Code (driving while impaired). Every citizen has a right to make full answer and defence but it must be understood that this right does not exist in a vacuum and that an accused’s right to make full answer and defence takes place within the context of a very busy court system.

“When that right is vindicated by the ability to retain the best counsel available, it is inevitable that a defence will take a lot of time and resources and entail delay commensurate with the level of the defence mounted.”

Mahaffy’s trial lasted about 41 months, featured expert witnesses, 20 court sessions and the rejection of another Canadian Charter of Rights and Freedom challenge.

In the end, Mahaffy was found guilty of having more than the legal allowable level of alcohol in his system while driving (blowing over). Mahaffy was fined $1,000 and issued a one-year licence suspension.

Mahaffy, however, is challenging Guay’s ruling and has filed an appeal with the Superior Court of Justice.

In his decision, Guay found that delays in the case were due to the defence, in particular, a delay from Jan. 8, 2014, to May 20, 2014, which was the result of “defence counsel’s unavailability and insistence on securing all relevant disclosure, including expert reports, before proceeding with the next major step in the case.”

Another significant delay, Guay said, occurred from June 9 to Oct. 21 , also in 2014 when the trial was supposed to start. He again blamed the defence, which launched a section 10 (b) Charter application. Section 10 (b) talks about the right of an accused person “to retain and instruct counsel without delay and to be informed of that right.”

“I find the defence responsible for this delay,” Guay wrote, “because what started off as a simple impaired case quickly developed into a complicated one featuring lengthy argument by the defence in favour of a section 10 (b) Charter application,” wrote the judge. “Here, I find that the Crown was lured into thinking the case was going to be a simple one.”

“It seems clear, however, that the defence had no intention of proceeding expeditiously in arguing the section 10 (b) Charter motion, as merited as it was, and a trial encompassing both the evidence of the Crown and the defence and the hearing of a Charter motion. Agreeing to this estimate led to a lengthy adjournment for completion of the section 10 (b) Charter motion on October 21, 2014, every adjournment until then occurring in a context of counsel unavailability having serious delay consequences.

“Again, the problem here was not that the section 10 (b) was without merit or advanced for improper motives, but rather that its prosecution by the defence and the failure of the defence to give the Crown a ‘heads up’ about the motion’s complexity set the stage for significant delay.

“For this reason and not because I fault counsel for bringing the motion, I ascribe the delay in this period, approximately 4.5 months (135 days) to defence delay.”

On Feb. 3 of this year, just moments after producing his guilty verdict, defence lawyers Michael Venturi and Berk Keaney told Guay they filed a second Charter challenge in early January.

The challenge, filed under Section 11B of the Charter, alleged the case took too long to go to trial and be resolved. It was identical to one filed some time ago by the defence, which was rejected by Guay, but the new challenge occurred after the Supreme Court of Canada’s Jordan ruling last July,

That case dealt with an appeal by a British Columbia man who was charged in December 2008 with selling cocaine and heroin and convicted in February 2013 — a span of more than 49 months.

As a consequence, the Supreme Court set new rules for an accused’s right to be tried in a reasonable time frame. In the case of provincial court trials, the Supreme court indicated they should be completed within 18 months, within 30 months if a preliminary hearing is held.

Mahaffy was charged following an incident on Telstar Avenue about 2:45 a.m. on Aug. 20, 2013.

The trial heard Greater Sudbury Police Const. Sherry Young was told an apparently intoxicated man — Mahaffy — had left the Canadian Tire gas bar on Algonquin Road and was heading northbound on Regent Street.

Young located the vehicle matching the description a short time later travelling about 80 km/hour in a posted 60 km/hour zone on Regent Street.

Mahaffy turned onto Telstar Avenue and did not stop right away when the officer activated her vehicle’s lights. Young noticed a weak smell of alcohol as she initially talked to Mahaffy, but the odour got stronger when she got closer to him and later when he was sitting in her police cruiser.

When Young asked Mahaffy if he had been drinking, he said he had been. The officer also noticed slow speech.

Mahaffy failed a roadside breath test and later produced Intoxilyzer readings of 130 and 121, both well over the legal allowable level of 80 while driving.

In finding Mahaffy guilty, Guay said Young conducted her roadside test and Intoxilyzer tests in a proper and timely manner.

Source: The Sudbury Star