Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Breton Berthiaume
Before: Justice Paul H. Reinhardt
Ruling Released: 10 April 2012
Counsel:
- Mary-Anne Mackett, for the Crown
- David Costa, for the Accused
REINHARDT J.:
Introduction
1On 28 November 2009, Mr. Berthiaume was charged with two Criminal Code offences, s. 253(1)(a): Impaired Driving and s. 253(1)(b): Over 80.
2By Notice of Application dated 13 January 2011 and returnable 3 February 2011, the accused brought an Application alleging that the accused was arbitrarily arrested and fundamental disclosure was withheld from him, thereby denying him the opportunity to make full answer and defence contrary to sections 7, 8 & 9 of the Canadian Charter of Rights and Freedoms (the "Charter"). The remedies sought in this application included an order under subsection 24(2) to exclude evidence and an order under 24(1) staying these proceedings. As can be seen, this application logically requires judicial scrutiny and consideration both prior to, and during the "trial proper".
3Subsequent to the commencement of the first application, by Notice of Application dated 9 June 2011 and returnable 22 June 2011, the accused brought a further application before this court alleging an unreasonable delay, pursuant to section 11(b) of the Charter. The remedy sought was a stay of the proceedings pursuant to 24(1) of the Charter.
4We have not yet commenced the "trial proper" in this proceeding.
5In this pre-trial ruling, I have dismissed, at this juncture in the proceedings, to the degree that it can be evaluated from the vantage-point of a pre-trial application, a portion of the first application, which alleges the withholding of "fundamental disclosure" and which seeks the remedy of a stay.
6I have also dismissed the second application in its entirety, which alleges an unreasonable delay pursuant to section 11(b), which also seeks the remedy of a stay.
7Pursuant to my findings with respect to the unreasonable "trial-time estimates", as set out in paragraphs 94 to 99, of this ruling, I am therefore requesting that counsel, on receipt of this ruling, immediately communicate with each other and then the trial coordinators, and carefully consider their trial-time estimates and confirm that they are ready to proceed on our next scheduled court date, 18 April 2012, to commence the "trial proper" and have scheduled sufficient trial time to do so.
8Here are my reasons.
1: History
1(a): The Arrest
9Mr. Berthiaume is a Police Constable employed by the Halton Regional Police. He was arrested while off-duty on 28 November 2009 in the City of Toronto by Toronto Police Service 11 Division Constable Andrew Vanderburgh. Constable Vanderburgh was accompanied in his squad car that evening by Constable Suhail Khawaja, also of 11 Division.
10Constables Vanderburgh and Khawaja were initially dispatched to attend at Mr. Berthiaume's home, as a result of a 911 caller reporting to the police that they had observed erratic driving on the Don Valley Expressway, and had recorded a licence plate which the police dispatch could then trace in Ministry of Transportation driver records to discover the car owner's identity and residence address.
11Mr. Berthiaume was investigated near his residence, arrested, taken to 22 Division, required to give a samples of his breath into an approved instrument, charged with "impaired" and "Over 80" driving offences, released from 22 Division and required to come to court on 11 January 2010.
1(b): The Alleged Police Misconduct
12On 28 November 2009, certain events transpired at 22 Division and later when Constables Vanderburgh and Khawaja were returning to 11 Division to finish their shift that resulted in a number of internal police investigations. At least one of these investigations formed the basis of recommendations for disciplinary action against P.C. Khawaja and both of these incidents became the subject of considerable media attention.
13After reviewing the disclosure provided by the Crown, and without making any findings myself, at this stage in these proceedings, except for the limited purpose of this pre-trial ruling, it can be said that the disclosed material allege that Constable Khawaja refused to assist Constable Vanderburgh in the arrest and preparation of paperwork at 22 Division. Constable Khawaja is purported to have stated on more than one occasion that evening to different informants that he wanted nothing to do with the arrest of a fellow police officer.
14The disclosed internal police summaries also allege that Constable Vanderburgh was "harassed" by a number of police officers from 22 Division, some of whom, it is alleged, called Constable Vanderburgh a "rat" because of his arrest of Mr. Berthiaume on these charges.
15The disclosed internal summary with regard to Constable Khawaja also allege that, after Berthiaume was released, as Vanderburgh drove in his marked police vehicle with Khawaja, as his passenger, back from 22 Division to 11 Division to complete their shift, their vehicle was first followed for about 2 kilometres by a second police vehicle, and then their vehicle was pulled over and Constable Vanderburgh was issued a Provincial Offence Notice by Constable James Little of 22 Division, for allegedly disobeying a red traffic light at Bloor Street and Prince Edward Drive in Toronto.
1(c): The "In-Take" Proceedings in Court & Correspondence
16Counsel Mr. Costa first appeared in court at Old City Hall, Courtroom 111, on 1 March 2010, but did not go on the record. The matter was further adjourned from time to time, and a target date was eventually set on 6 August 2010, for a one and one-half day trial to be heard on 3, 4 February 2011. Mr. Costa was not prepared to go on the record as counsel when the target trial dates were set "with or without counsel".
17Throughout these proceedings, Mr. Berthiaume either personally or through Mr. Costa has sought what Mr. Costa has described as "McNeil disclosure" of the alleged police misconduct and internal police disciplinary proceedings, as well as the notes of officers who were the subject of those proceedings, or involved as witnesses in those proceedings. The Crown, in turn, has consistently objected to Mr. Berthiaume's requests, arguing that the proceedings were irrelevant, could not reasonably impact his case, and were not part of the Crown's first-party McNeil disclosure obligations, thereby necessitating an O'Connor application. To date, no formal O'Connor application has been brought before the Court. (See R. v. McNeil 2009 SCC 3 and R. v. O'Connor, which are discussed in detail, below, in this ruling, under the heading "3.1(e): Understanding the Crown's Disclosure Obligations under R. v. McNeil.")
18Initially, well prior to retaining Mr. Costa in January of 2011, Mr. Berthiaume sought disclosure of the Crown's case as part of his trial preparation.
19On 29 March 2010, Mr. Berthiaume, on his own behalf, asked for a further adjournment to 19 April 2010 for further disclosure to be made by the Crown. Mr. Berthiaume placed on the record the fact that he had had a pre-trial with the Crown on 2 February 2010, had scheduled a second pre-trial for 28 February at which time the Crown did not attend, and was still awaiting receipt of "lots of disclosure" including the DVD for the breath tests.
20On 19 April 2010, Mr. Berthiaume again attended court on his own. The Crown of the day, Ms. Sweeny, advised the Court that she had not heard back from the officer-in-charge and therefore needed three further weeks to make disclosure. Mr. Berthiaume agreed to an adjournment, but asked that the matter go over a further week to 17 May 2010 to suit his schedule.
21On 17 May 2010, Mr. Costa appeared for Mr. Berthiaume, though he had not been retained. Mr. Costa asked for a further adjournment of the matter to 31 May 2010, to allow for disclosure of the "breath tech video" and witness statements.
22On 31 May 2010, Mr. Costa again appeared for Mr. Berthiaume, though not retained, and indicated he had held a Crown pre-trial with the newly assigned Crown, Ms. Mackett, and was ready to set a judicial pre-trial prior to the next return date of 29 June 2010.
23From an initial letter dated 3 August 2010 and follow-up letters of 30 September, 16 December 2010 and 10, 13 January 2011, Mr. Costa sought disclosure of what he described as "McNeil disclosure".
24There is no transcript for 29 June 2010, but on 12 July 2010 Mr. Berthiaume did not appear for court. Both Ms. Mackett and Mr. Costa appeared and indicated that they had commenced a judicial pre-trial with Justice Fairgrieve that morning. By mutual agreement, the judicial pre-trial had to be further adjourned because "it was a serious case", in the words of Ms. Mackett. Because counsel had still not been retained, a discretionary bench warrant was issued for Mr. Berthiaume on consent, returnable on 6 August 2010.
25On 6 August 2010 target trial dates of 3 & 4 February 2011 were set with the information noted "with or without counsel". The matter was further adjourned to 17 December 2010, and then 22 December 2010 in 111 Court to confirm those trial dates and the retaining of counsel.
26The correspondence filed shows that the parties intended to convene a further judicial pre-trial on 17 December 2010, and to confirm Mr. Costa's retainer in court on that date.
27However, on 17 December 2010, Mr. Costa was not, in fact, retained, and did not attend for the judicial pre-trial. Mr. Berthiaume did not attend as well. The transcript discloses that a Mr. Scott appeared as agent for Mr. Costa and indicated that the latter had a "conflict". The matter was adjourned to 22 December 2010, with the bench warrant for Mr. Berthiaume extended to that date.
28On 22 December 2010, a Mr. Anderson appeared as agent for Mr. Costa and requested a further adjournment to 7 January 2011, to allow Mr. Costa to meet with Mr. Berthiaume and confirm his retainer to act as counsel for the trial. Mr. Berthiaume was not in attendance on this date. The presiding Justice of the Peace did not agree to the short adjournment, and adjourned the matter directly to the first trial date of 3 February 2011.
29On 13 January 2011, Mr Costa wrote to the assigned Crown, Ms. Mackett, and advised that he was now retained and ready to act as trial counsel.
1(d): In Court & Correspondence With Counsel on and after 3 February 2011
30On the first day set aside for trial, 3 February 2011, it became clear that there were outstanding disclosure issues between the parties that had still not been resolved.
31In court on that date, Mr. Costa stated that up until 3 February 2011, the Crown (now Ms. Mackett) had insisted that all the McNeil disclosure had been given to the defence, while in fact it had not been disclosed. He stated at page 5 of the transcript on that day:
Thank you for the opportunity to respond, Your Honour. No what I'm addressing on December 16 is our understanding that there appears to be valid outstanding McNeil disclosure issues despite Ms. Mackett's information that there is not. The defence invested the effort of an interim judicial pre-trial before your brother Justice Fairgrieve and all along we were led to believe that there is no McNeil issue in this matter. And it comes to the point where the defence has to reveal what it knows, and as Your Honour sees there, we sent the January 10 correspondence, and you have the attached reference s to City News and Sun Media, where indeed there are concerns that allege intimidation and people calling people rats and people having their hours paid reduced.
32In the verbal exchange that took place, at approximately 10:30 am, Crown counsel Ms. Mackett indicated that there would be further disclosure that very day, and that, in her words, it was a mix-up:
So it's a mix-up. It's entirely, I'm sure, my fault.
33However, Mr. Costa stated that, because of this lack of "complete" McNeil disclosure by the Crown up until 3 February, from his perspective:
I'm no further ahead than I was six months ago, if that assists Your Honour.
34After further discussion on the record, it was agreed to by both counsel that Mr. Berthiaume be arraigned, I would make an order excluding witnesses, and then the matter would be held down for the morning recess to permit the Crown to make full disclosure of a McNeil Report regarding Constable Suhail Khawaja. The defence also agreed to evaluate its position on whether or not to proceed with the s. 7 Charter disclosure Application rather than to commence the trial proper that morning.
35Unfortunately, when we resumed after the morning break the Crown discovered that the full McNeil Report regarding Constable Khawaja could not be made, because the report in the Crown brief was missing essential narrative information. According to Ms. Mackett:
I apologize, I was late coming back. I was discussing with the officer downstairs. He had been on the phone with his wife quite some time and I think she was completely unable to find the single extra piece of paper that we wanted. We had part of this McNeil report. But she couldn't find the details page as to what the facts that were the subject of it. An I gave counsel my imperfect understanding of what it's about but, of course, the officer wants it to be exact, so in fact he's driven home and is going as fast as he can.
36In summary, complete disclosure of the police internal records of Constable Khawaja's "misconduct" on 28 November 2009 could not be made as an essential page of McNeil Report was at Constable Khawaja's residence, and not in the courthouse or the Crown brief. For that reason we had further submissions from both counsel on the distinct issue of the "911 caller" and then adjourned until 2:15pm to permit the Crown to obtain the complete McNeil Report.
37When we resumed on the afternoon of 3 February 2011, the Crown was able to produce the missing page of the McNeil Report regarding Constable Khawaja.
38Unfortunately, we again faced an advocacy dispute regarding the appropriate "first-party" Crown McNeil disclosure obligation in this case.
39In Mr. Costa's submission, the disclosure of Constable Khawaja's Report was not sufficient.
40Mr. Costa indicated he was seeking all of the notes and "McNeil disclosure" regarding the events at 22 Division, and later, when Constable Vanderburgh was stopped and ticketed while returning to 11 Division with Constable Khawaja to complete his shift.
41In addition, there was still no agreement between counsel as to the appropriate manner for dealing with the potential eye-witness to Mr. Berthiaume's driving on the Don Valley Expressway – (the "911 caller").
42The "911 caller" was the individual who, according to the Crown, initially called the police about Mr. Berthiaume's alleged impaired driving on the Don Valley Expressway. Disclosure of the identity of this individual was being shielded by the Crown from disclosure to the defence on the basis of claimed informer privilege as interpreted by the Supreme Court of Canada in R v Leipert. Therefore, the Crown stated that she would not disclose any further information about this 911 caller to the accused without a further order from this Court.
1(e): The Disclosure Hearing
43For this reason, I made an order banning any court identification of the actual name of the 911 caller and we proceeded to commence a disclosure hearing so that the defence could pursue more complete disclosure prior to the commencement of trial. The disclosure hearing, as it now stood, dealt with two distinct issues:
- Informer Privilege: whether the Crown should be required to disclose the identity of the 911 caller; and
- Further McNeil Disclosure: whether the Crown should be required to pursue more McNeil disclosure involving third parties, beyond the disclosure already made regarding Constable Khawaja, pertaining to the incidents after the arrest of Mr. Berthiaume that had given rise to other internal police disciplinary investigations.
44As a result, we devoted the rest of 3 February 2011 and all of 4 February 2011 hearing in-chief, cross- and re-examination from the officer-in-charge (or "OIC") of the case, Myron Chudoba. The matter was further adjourned for legal argument to 1 April 2011.
45When court re-convened on 1 April 2011, Crown counsel requested a further adjournment to pursue the police disciplinary information and the disclosure of the notes of 22 Division officers, which had not yet been provided to her by the City of Toronto Police Services' legal department.
46The adjournment was also necessary for another distinct reason: counsel was no closer to a consensual resolution of the 911 caller issue, leaving it to be argued as a contested matter.
47On the basis that the police discipline information and officers' notes would be made once the Crown was provided with the information from the City of Toronto Police Services' legal department, the defence agreed to a further adjournment on the understanding that the disclosure with regards to the 911 caller would be argued on the next available court date. The Crown agreed to provide a factum, the existing Crown information regarding the 911 caller, and the type of "identifiers" the Crown currently had in its' possession at least 30 days prior to the return date of 9 May 2011.
48The Crown provided its amended factum on 14 April 2011. On 9 May we reconvened for my ruling on whether the Crown was required to disclose the identity of the 911 caller and for further submissions on the additional McNeil-type disclosure sought by the defence. That disclosure consisted of officer notes regarding two "incidents":
- The alleged abusive conduct at 22 Division by some police officers towards P.C. Vanderburgh; and
- A traffic ticket given to P.C. Vanderburgh that evening after he left 22 Division.
49On 9 May 2011 I heard submissions from both sides and ruled in favour of the Crown argument that the identity of the 911 caller was indeed protected by informer privilege, following the reasoning in Leipert.
50On that same day, on the disclosure application for the police officer notes on the above "incidents" we again confronted a continuing disagreement regarding the Crown's view of its disclosure obligations, and the contrasting view of the defence.
51As a result, the balance of 9 May 2011 was entirely devoted to a discussion of from which further police witnesses the Crown would seek to obtain disclosure notes. There was no time that day for further evidence and the application was adjourned to 17 May for a "progress report" from the Crown on what notes she was able or willing to obtain.
52On 17 May, Mr. Costa did not attend Court. The disclosure application was adjourned to 22 June 2011 for Mr. Berthiaume to testify on his application and to review the state of the on-going disclosure requested by the defence.
1(f): The Second Stay Application
53On 22 June 2011, Mr. Berthiaume joined a Charter 11(b) stay application to his original disclosure and stay application, under section 7, 8 & 9 of the Charter.
54After placing before the court his new application and application record, including a further affidavit from him, Mr. Berthiaume testified in-chief and in-cross.
55Before, during and after Mr. Berthiaume testified that day, counsel and I discussed the potential time requirements of the continuing disclosure application, which was now coupled with an 11(b) stay application, and, in addition, the time requirements for the trial itself.
56In this discussion I learned that the police notes, originally the subject of extensive discussions and submissions on 9 May 2011 had still not been disclosed, because of the continuing disagreement between counsel as to what was relevant to the trial.
57As a result of this impasse, the court day of 22 June 2011 ended with my making an order that the Crown produce the notes of nine police officers, leaving open the question of "probative relevancy" and the matter was adjourned to 9 November 2011 for further evidence and submissions.
58On that date I urged counsel to schedule sufficient time for the application to be heard, with further time set aside for the trial itself, if necessary, in the event that the "trial proper" proceeded.
59On 9 November 2011, Mr. Berthiaume was re-examined by his counsel, and I heard from the arresting Officer, Constable Vanderburgh as a Crown witness on the disclosure and delay application.
60On 10 November 2011, I again heard from Constable Vanderburgh in-chief, cross, and re-examination. I also heard from O.I.C. Chudoba in-chief.
61On 1 December, O.I.C. Chudoba continued his testimony in-chief, cross, and re-examination.
62On 2 December 2011, Mr. Costa was permitted to file two further exhibits: the Nova Scotia Public Prosecution Service McNeil Protocol (dated 19 November 2009) and the Canadian Chiefs of Police Code of Police Practice (dated 22 July 2008). He also made oral argument for a stay of these proceedings.
63The Crown was permitted to file written submissions in response, which she did in a factum dated 18 January 2012.
64Mr. Costa made further oral argument in reply on 23 February 2012.
2: The Legal Framework
65The law with respect to section 11(b) is found in R. v. Morin. The factors to consider are:
- the length of the delay;
- waiver, if any, of time periods;
- the reasons for the delay, including
- a. the inherent time requirements of the case;
- b. the actions of the Crown;
- c. the actions of the accused;
- d. the limits on institutional resources;
- e. other reasons for the delay; and
- prejudice to the accused.
66The manner in which trial judges should address the weighing of the Morin factors was very thoroughly addressed by the Ontario Court of Appeal in R. v. Schertzer 2009 ONCA 742.
67Schertzer involved an information sworn in January 2004 alleging substantial and serious allegations of attempting to obstruct justice, perjury, assault causing bodily harm, extortion, theft and conspiracy to obstruct justice on the part of six Toronto Central Field Command ("CFC") drug squad officers. The original trial judge estimated that 56 months would have elapsed before the trial could be completed and found that the vast majority of the time that had passed in the prosecution resulted from the Crown's inability to make full and complete disclosure. He also concluded that the prosecution had been characterized by complacency and a lack of awareness of the need to prosecute the case without delay. Additionally, he found that the accused had suffered actual and inferred prejudice as a result of the delay.
68On appeal, the stay of proceedings was set aside and a new trial was ordered. The Court concluded that the delay in making disclosure had no impact on the progress of the prosecution, in the sense that the delays and complexities of the disclosure process were properly attributable to the "inherent time requirements" of the case. The Court ruled, at paragraphs 4 & 5 of its decision:
4 The trial judge delivered his reasons on the s. 11(b) motion after months of pre-trial proceedings. In those proceedings, he became very familiar with the long history of the charges before him, and the issues on which battle had been joined at the pre-trial stage. It is fair to say he knew a great deal about the investigation that led to the charges and the pre- and post-charge management of the case by the prosecution. Understandably, the trial judge formed certain opinions about the Crown's conduct of the prosecution. In some respects, he was clearly not impressed. The trial judge was also justifiably concerned about the length of time the charges had been before the courts, particularly given the lengthy pre-charge history of the matter and what he found to be significant ongoing prejudice suffered by all accused.
5 Whatever the validity of the trial judge's assessment of parts of the Crown's management of this case - upon which we explicitly refrain from commenting - s. 11(b) is not the medium through which the quality of the prosecution's performance is measured. Section 11(b) focuses exclusively on delay and the causes of that delay, and this case proceeded in accordance with a schedule with which the accused and their counsel were content.
69A recent decision by Justice Michael Code in the Superior Court of Justice in this province, R. v. Lahiry 2011 ONSC 6780, cited with approval in the Superior Court of Justice by Justice Ian MacDonnell in R. v. Beteta-Amaya [2011] O.J. No. 5136 and in the Ontario Court of Appeal by Madam Justice Janet Simmons in R. v. Tran 2012 ONCA 18, has clarified a particular area of this legal framework: the proper calculation of systemic or institutional delay. In the four cases under appeal before Justice Code, the trial judges characterized the entire period from the set date appearance to the trial date as systemic or institutional delay. As stated by Justice Code, in paragraph 2 of his decision in Lahiry:
The one error that is common to all four appeals is the proper calculation of institutional delay. In all four cases, the entire period from the set date appearance to the trial date was automatically characterized as systemic or institutional delay, without further analysis. This is not a correct approach to calculating this particular cause of delay, given that institutional delay only "starts to run when the parties are ready for trial but the system cannot accommodate them", as Sopinka J. put it in R. v. Morin (1992), 71 C.C.C. (3d) 1 at p. 18 (S.C.C.). The Court cannot find that a particular period of delay has been caused by systemic congestion until it is first established when counsel were ready to try the case [Emphasis added].
3.1: The Relevant Principles as they apply to the case at bar
3.1(a): The Overall Period of Delay
70The overall period of delay is calculated from the date the information is sworn to the date the trial is completed: R. v. Kalanj. The information was sworn on 5 January 2010 and the trial is now scheduled to proceed on 18 April 2012. This is an overall period of over twenty-seven months. As stated by Justice Code in Lahiry, this first factor is simply a mechanism for weeding out frivolous applications. It is only necessary to go on and consider the other three factors if the overall delay is of sufficient length to raise an issue as to its reasonableness: R. v. Askov and Morin, supra. I am satisfied that a delay in this case of over twenty-seven months requires further scrutiny.
3.1(b): The Intake Period
71In my consideration of the reasons for the delay, I must allow for an appropriate intake period. An acceptable intake period will vary depending on the nature and complexity of the case. Neutral intake periods usually are considered to include the time needed to arrange bail, retain counsel, prepare and review disclosure, write follow-up requests, and prepare for judicial pre-trials. In Morin, two months was deemed appropriate to complete all normal intake procedures, given the simplicity of the case. Here, in the period between 18 November 2009 and 13 January 2011, a period of almost fourteen months, time was devoted to some aspect of these types of "intake" procedures.
72For example, the initial pre-trial before Justice Fairgrieve, which commenced on 12 July 2010, could not be completed on that date, because of the lack of initial, threshold disclosure being complete, as well as the McNeil disclosure questions. According to their correspondence, after 12 July 2010, the intention of the lawyers was to hold a further judicial pre-trial on 17 December 2010. However, that further pre-trial did not take place because Mr. Costa was not yet retained by Mr. Berthiaume.
73Although the retaining of counsel, in my view, would have accelerated significantly the ability of the parties to sort out the difficult issues regarding McNeil disclosure, to prepare for pre-trial motions, and appropriately schedule the necessary time periods for the eventual trial, Mr. Berthiaume was entitled to proceed to seek his disclosure without counsel.
74For this reason, as the "Attribution of Delay" Chart discloses, below, I have attributed forty-one days, from 19 April 2010 to 30 May 2010 to "actions of the Crown" due to the Crown failure to provide the breath room DVD in a timely way after requests from both Mr. Berthiaume, personally, and from Mr. Costa, on his behalf.
75However, in my view, on the balance of the contentious and disputed disclosure issues I find that the conduct of the defence was responsible for much of the lack of clarity and ultimately the loss of valuable trial time to disclosure disputes.
76In my view, this is by no means a simple case, such as that in Morin. It involves considerations of the appropriate disclosure and vetting of a number of alleged McNeil items of disclosure, including the notes of nine police officers, arguably "third parties", who were not directly involved in the investigation.
77The disclosure request for these notes, regarding some officers who were subject to disciplinary proceedings was sought by the defence as "first-party" disclosure and the defence argued that that this material should have been released by the Crown, without the necessity of an O'Connor application being brought.
78It is quite self-evident in retrospect that the dispute over the appropriateness of the disclosure of this material extended the "intake period" in this proceeding dramatically.
79To indicate how this increased the "complexity", before we were finished the Crown had dealings with, and with respect to the second counsel, the court heard from; both Toronto Police Services corporate counsel, and counsel for the Toronto Police Association.
80The reality that "police misconduct allegations" disclosure adds to the complexity of proceedings is acknowledged by Justice Charron in her judgment in McNeil, starting at paragraph 43, and her heading "5.2.2" where she addresses "Guarding Against Unnecessary Intrusions into Privacy Interests."
81In this difficult context, Justice Charron opines that both the Crown and the court have a threshold "gate-keeper" function to protect the privacy interest of the law enforcement personnel who are the subject of misconduct allegations. (Again, I discuss this in more detail, below, in Section "3(1)(e)" of this ruling: "Understanding the Crown's Disclosure Obligation under R. v. McNeil.")
82In my view, the conduct of the defence, in pursuing the disclosure of the "police misconduct allegations" in the manner that was followed and the timing of Mr. Costa's retainer significantly contributed to the delay we experienced in this case.
83In my view, the resolution of both the "911 caller" dispute and the McNeil disclosure issues was not facilitated by the defendant's failure to retain counsel in a timely fashion, and counsel's failure to consider the appropriate procedural case law and remedies.
84As the record shows, although he commenced working for Mr. Berthiaume in seeking disclosure through correspondence and appearing at the first Crown and judicial pre-trials, Mr. Costa was not formally retained to act as trial counsel until the very eve of the first trial date in mid January of 2011. As a result, the second judicial pre-trial could not take place, and the Crown's first-party obligation to obtain and disclose Constable Khawaja's disciplinary records was circumscribed by the fact of an unrepresented accused.
85In addition, because counsel was not retained, and pre-trial applications for disclosure were not scheduled, a timely resolution of these disclosure issues prior to the first trial date became impossible.
86I am therefore of the view that the appropriate neutral intake period in this case is not just from the swearing of the information on 5 January until the setting of the trial date on 6 August 2010 (a period of seven months). Instead, the appropriate neutral intake period must be continued beyond that date due to Mr. Costa's lack of a retainer, and the failure to schedule in a timely way the appropriate pre-trial applications.
87To explain how this works in the attribution chart which is found at the end of this ruling, I must now return to a discussion of the legal framework, as found in the case law respecting 11(b) delay.
3.1(c): Reasons for The Delay – Calculating Institutional Delay
88The second period of delay was from 6 August 2010 to 3 February 2011. This was the period between the setting of the target trial date and the first day of trial, a period of about six months. This is the period that is generally understood as the period of "institutional delay". In the analysis of Justice Sopinka in R. v. Morin, at paragraph 47:
47 Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(b) of the Charter. It was the major source of the delay in Askov. As I have stated, this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them. In Utopia this form of delay would be given zero tolerance. There, resources would be unlimited and their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential court staff would always be available. Unfortunately, this is not the world in which s. 11(b) was either conceived or in which it operates. We live in a country with a rapidly growing population in many regions and in which resources are limited. In applying s. 11(b), account must be taken of this fact of life. As stated by Lamer J. (as he then was) in Mills (at p. 935), and approved in Askov (at p. 1225):
In an ideal world there would be no delays in bringing an accused to trial and there would be no difficulties in securing fully adequate funding, personnel and facilities for the administration of criminal justice. As we do not live in such a world, some allowance must be made for limited institutional resources.
89In Lahiry, Justice Code concluded that the approach to calculating "institutional delay" has to reflect not only the passage of time between the day the parties are ready to set the date, and the date they receive. In addition, the approach must also take into account defence counsel's actual and realistic availability to attend and represent the client at trial.
90Thus, Justice Code looks at two factors:
- The first available date that the defence could attend to represent the client at trial; and
- The availability of defence counsel on the dates at which time the court can provide a courtroom and judicial officer to hear the case.
91Using this approach, Justice Code reduced the "institutional delay" in the initial fact situation he dealt with in Lahiry from just less than eleven months (from 3 March 2010, when the trial date was set, until 28 January 2011, when the trial proceeded) to just over nine months. Here is his calculation, at paragraphs 36 and 37 of his judgment:
36 In any event, in this case the trial judge properly insisted that defence counsel file his instructing letter to his agent as an exhibit. As the trial judge put it"it would have been nice to know what those [earlier available] dates were". As a result, it was clear from the evidentiary record on the s. 11(b) Motion that the earliest dates on which counsel could accommodate this new case in his calendar were in late April or early May of 2010. This would also allow counsel time to properly prepare the case for trial and to prepare his s. 11(b) Motion.
37 As a result, the period of systemic delay in the case at bar, at best, ran from April 23, 2010 until January 28, 2011. In other words, this period of delay was just over nine months rather than just under eleven months. The remaining one month and twenty day period, from March 3 until April 23, 2010, was part of the inherent time requirements of the case as counsel needed time to accommodate a new case in his calendar and needed time to prepare it. This period of just under two months carries neutral weight in the s. 11(b) analysis [Emphasis added].
92In my view, by setting a "target" date with the information being endorsed "with or without counsel" and without getting on the record, the defence in this case must take some of the responsibility for the six month period up until the anticipated "first trial" date.
93Due to the conduct of the defence and the accused's own decision-making about retaining counsel, I have apportioned the six month balance of time from the setting of the target date on 6 August 2010 to the first trial date of 3 February 2011 equally between the categories of "institutional delay" and "inherent time requirements."
3.1(d): Reasons for Delay – The Use of Trial Dates for the Application and the Further adjournments for "Completion" of the First Disclosure Application
94The trial in this case was scheduled to take one and one-half days"with or without counsel". It has not yet commenced, due to the fact that we have used of all of the subsequent court dates for disclosure hearings and this application.
95In my view, and of course, in retrospect, this "one and one-half days" estimate for how much time would be needed for the trial was unreasonable. In addition, the manner in which the first "disclosure" and the second 11(b) delay applications evolved made the timing of these applications, and the time estimates for completing these applications also unreasonable.
96On behalf of Mr. Berthiaume, Mr. Costa submits that if the Crown had been more forthcoming in making disclosure and not so resistant to the defence requests, the matter could have proceeded to trial, and that trial would now be completed.
97It follows, logically, according to the defence view of the proceedings that, absent Crown recalcitrance, the time estimates for the applications and the trial were accurate.
98With the benefit of the hindsight provided by my review of the record, I must disagree. I have concluded that the time estimates both for the applications and the trial herein were both unreasonable, and were contributors to the ultimate scheduling difficulties in this case.
99I have further concluded that those "scheduling" difficulties are directly related to the fact that counsel was not retained in sufficient time to prepare the appropriate pre-trial applications, that the second judicial pre-trial could not take place, and that on the eve of the date scheduled for trial, the bulk of the disclosure disputes between the parties had not been resolved, by application or otherwise.
100In Lahiry, it is actually the second fact situation, the case of Jose Carreira that involves adjournments that occur after the first scheduled trial date. In Mr. Carreira's case, the trial was originally set for 12 September 2008"with or without counsel". On subsequent dates prior to the trial date, various factors intervened, including the defence's request for adjournments and waivers of the interim time periods. On the second date set for trial, 23 March 2009, the trial commenced at 2:30 p.m. because of other matters on the list. The arresting officer completed her examination—in-chief but the matter was not finished, so the parties attended at the trial coordinator's office and obtained a new date of 26 August 2009 for further evidence. In fact, for various interruptions, the matter did not commence again at all, and had to be further adjourned until 14 December 2009. On that date, further evidence was not heard until 3:30 pm because of the heavy docket. Carreira's matter was further adjourned until 17 March 2011, when the trial evidence was completed.
101Justice Code summarizes the existing case law on re-scheduling cases where the trial evidence is not completed, or other factors intervene, as follows:
67 There is now a substantial a body of case law dealing with this issue of re-scheduling a trial that has not commenced or that has not been completed on the scheduled trial date. These authorities hold that the case must be given priority in the system and that the delays resulting from re-scheduling the trial date will generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on the circumstances. See: R. v. Godin, supra; R. v. Brace (2010), 2010 ONCA 689, 261 C.C.C. (3d) 455 at paras. 14-16 (Ont. C.A.); R. v. Allen, supra at pp. 347-351; R. v. Satkunanathan (2001), 152 C.C.C. (3d) 321 at paras 43-5 and 54-5 (Ont. C.A.); R. v. M. (R.) (2003), 180 C.C.C (3d) 49 at paras. 6-9 (Ont. C.A.); R. v. W. (A.J.) (2009), 2009 ONCA 661, 257 O.A.C. 11 at paras. 29-43 (Ont. C.A.); R. v. Khan, supra at paras. 58-71 [Emphasis added].
102These issues are also addressed in some detail by the Ontario Court of Appeal in Schertzer, to which I have already referred.
103In this case, the accused submits that the delay from 3 February 2011 to 1 December 2011, a period of ten months, should all be attributed to unjustified Crown delay, due to the Crown's resolute resistance to making timely disclosure in the case. The Crown submits that this resistance was a principled response based upon jurisprudence and necessitated the "burning" of the available trial dates for the hearing of this application.
104Let me first deal with the separate and distinct issue of the defence request for the disclosure of the identity of the 911 caller.
105On 9 May 2011 I heard submissions from both sides and ruled in favour of the Crown argument that the identity of the 911 caller was indeed protected by the informer privilege, following the reasoning in Leipert.
106In my view, the resistance by the Crown to the initial disclosure request by the defence of the identity of the 911 caller, which necessitated legal argument, the preparation of a Crown factum, and a ruling from this court, had to be done commencing on the trial date, because of the lack of a timely scheduling of a pre-trial application.
107For this reason, I have concluded that the time devoted to this issue was part of the "inherent time requirements" of the case.
108As well, with respect to the conduct and timing of the McNeil disclosure application by the defence, in my view the bulk of the delay in the trial in this matter being completed in a timely fashion is directly related to two inter-related primarily defence deficiencies:
- (1) The disclosure and 11(b) applications not being brought in sufficient time for them to be heard prior to the scheduled trial dates; and
- (2) The lack of proper time estimates for the applications and the scheduled trial.
109Having acknowledged these deficiencies, another culprit can be seen to have contributed to the time delays in this proceeding: The different views of the parties as to the Crown's "first party" and "third party" disclosure obligations.
3.1(e): Understanding the Crown's Disclosure Obligations under R. v. McNeil
110In its judgment in R v. McNeil 2009 SCC 3, the Supreme Court of Canada, with Justice Charron speaking for the court, clarified that the Crown has a positive obligation to disclose all information that is relevant to an accused's case. At paragraph 17 of this judgment, Justice Charron references with approval the Court's earlier direction in R. v. Stinchcombe that relevant information includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of his/her right to make full answer and defence.
111Thus, police disciplinary information "relevant" within the meaning described above should form part of the first party disclosure package provided to the Crown by the police without prompting. Its discovery should not be left to happenstance. Justice Charron, at paragraph 54 of McNeil outlined two broad categories of misconduct information that fit this description:
- (1) Police misconduct information directly related to the investigation against the accused; and
- (2) Police misconduct information that is not related to the investigation, but could reasonably impact the case against the accused.
112Where the police misconduct information is in the second category and therefore falls outside the ambit of presumptive inclusion in the Crown brief, the traditional O'Connor third-party records application still applies (see R v O'Connor [1995] 4 SCJ No 98 (QL)).
113This has a clear procedural importance to the way in which the defence is permitted to proceed with their contested disclosure request.
114In an O'Connor application, the initial onus rests on the accused to show that the third party records he or she seeks are "likely relevant" to his or her trial. This onus was described by Justice Charron in McNeil as a "significant but not onerous" burden, because it is designed to screen out speculative, fanciful and unmeritorious production requests.
115If the claim for "likely relevance" is demonstrated through counsel's argument, the Court must then look at the records to see if the claim of likely relevance established at the first stage of the O'Connor application is borne out. In other words, the Court must determine if the records are truly relevant.
116Importantly, in retaining the O'Connor application process for some police misconduct records, Justice Charron in McNeil also confirms the Crown and Court's gate-keeping function, to minimize the risk of trials getting out of hand due to disclosure issues, at paragraph 45:
Ascertaining the true relevancy of records targeted for production may become particularly important when the information on the production application concerns police disciplinary records. The contentious nature of police work often leads to public complaints, some legitimate and others spurious. Police disciplinary proceedings may also relate to employment issues or other matters that have no bearing on the case against the accused. The risk in this context is that disclosure, and by extension trial proceedings, may be sidetracked by irrelevant allegations or findings of police misconduct. Disclosure is intended to assist an accused in making full answer and defence or in prosecuting an appeal, not turn criminal trials into a conglomeration of satellite hearings on collateral matters.
117The most obvious difference with the third-party O'Connor application is the requirement of notice, and the right to legal representation, of the police officer or officers who are the subject of a disciplinary hearing that falls within Justice Charron's second category of "police misconduct" disclosure.
118It is important to recognize that this initial "gate-keeping" function, as described by Justice Charron, is commenced with the Crown's assertion of the lack of presumptive relevancy, and therefore, the need for an O'Connor application, on notice to the subject officers.
119How can the Crown and Defence's approach to disclosure impact the classification of delay periods?
120Crown failure to disclose when disclosure ought to have been made which results in delay may form the basis for a stay of proceedings pursuant to s. 11(b). However, the pace of disclosure, itself, does not automatically form a basis for Charter relief: see Schertzer, supra.
121In my view, the disclosure of P.C. Khawaja's McNeil Report and his notebook was properly within the category of material that, as stated by Justice Charron at paragraph 59 of her McNeil judgment as part of the "first-party disclosure package" which should be provided to the Crown initially by the investigating officer, and then disclosed to the defence in the normal course of the disclosure process, well prior to the first trial date.
122In this proceeding, the Crown kept stating in the pre-trial correspondence that "all McNeil disclosure had been made", when in fact, it had not, with respect Constable Khawaja's McNeil Report. In this, the Crown, in my view, caused unnecessary delay.
123However, the defence resolutely insisted that all officers notes and officers who were the subject to some form of internal discipline, regardless of their remoteness to the investigation, must be disclosed, without the necessity of the defence bringing a "third-party" O'Connor" application. In this, the defence, in my view, contributed to the delay in this matter proceeding to trial.
124In my view, each side of this dispute contributed to this impasse in such a way as to extend the delay.
125If an O'Connor application had been properly scheduled and brought well before the original trial date, we might have been able to resolve the disclosure matters prior to the commencement of the trial, scheduled for 3 February 2011. (For a discussion of this procedural point, and the need to bring disclosure matters before the court for resolution prior to the commencement of the trial, see Justice Code's endorsement in Emanuel, which follows.)
126In addition, if a Crown had properly seized themselves with this matter in enough time to guide the investigating officer in preparing the "first-party" disclosure materials in advance of the first trial date, the delay would have been shortened. (In this regard, Justice Charron clearly suggests that even an "unrepresented" accused may receive this type of disclosure, with careful restrictions in place.)
3.1(f): Reasons for The Delay – The Inherent Time Requirements of the Case
127In a recent appeal endorsement, R. v Konstantin Emanuel, 17 February 2012, Court File No. 42/11 (Ont. S.C.J.), Justice Code again addressed how trial judges should evaluate delay. Emanuel, like this case, involved the use of trial dates to hear a disclosure and 11(b) application.
128In Emanuel, the trial judge, Justice Brent Knazan, of the Ontario Court of Justice, a colleague in this building, Old City Hall in downtown Toronto, ruled that the time used to hear the application should not run against the Crown, but should be treated as part of the "inherent time requirements of the case". In his endorsement, Justice Code agreed.
129On the facts in that case, an application for a stay pursuant to s. 11(b) was brought on the eve of trial. Justice Code accepted the trial judge's analysis that the resulting time needed to hear the application should not be attributed to "institutional delay". Justice Code stated, beginning at paragraph 21:
I agree with the above analysis. If the pre-trial disclosure Motion was a step reasonably taken by the parties, that added to its complexity, then some reasonable time was needed for the Motion itself as well as some reasonable time between the Motion and the trial. Two months was not an unreasonable amount of time to allow, between the Motion and the trial, so that the judge could make a ruling, the Crown could produce whatever was to be disclosed, and the defence could review it and prepare for trial. In its recent decision in R. v. Schertzer et al (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at paras. 113-117 and 131 (Ont. C.A.) the Court addressed a similar issue and stated:
This time period was taken up with pre-trial motions and concluded with the issuance of the stay ruling. As noted above, the trial judge did not account for this five-month period in his Morin analysis. Before this court, counsel for the Schertzer respondents submit that most of the time consumed in pre-trial motions was a direct consequence of Crown disclosure practices, and that this time should therefore be attributed to the Crown. The Crown initially took the opposite view, arguing that the time taken for pre-trial motions should mostly be attributed to the defence. However, in oral argument, we took the Crown to have retreated from that position and instead argued that the pre-trial motions should be considered part of the inherent time requirements. We agree with that submission.
Ordinarily, the time taken to complete the trial, including resolution of pre-trial motions, the hearing of evidence and, in a judge-alone case, time while the decision is under reserve, is part of the inherent time requirements of the case. It is neither Crown delay because the Crown seeks to adduce certain evidence nor defence delay because the defence objects.
Exceptionally, the time taken at trial will lead to a finding of unreasonable delay. R. v. Rahey, [1987] 1 S.C.R. 558, was such a case. There the trial judge reserved for 11 months to resolve a motion for a directed verdict, a matter that should have been resolved in a few days. We can also envisage circumstances where time spent during pre-trial motions could be attributed to either the Crown or the defence. If the trial judge concluded that defence motions were frivolous and served no legitimate purpose, the time to deal with those motions might be attributed to the defence. Similarly, if the trial judge was of the view that, for example, the Crown acted arbitrarily or in bad faith in refusing to make disclosure or unnecessarily delayed the proceedings by failing to accept reasonable admissions from the defence, the resulting delay could be attributed to the Crown.
… we have not been persuaded that the time taken to resolve the disclosure issues during the pre-trial motions was due to arbitrary or bad faith conduct by the Crown.
We would consider the five months spent on pre-trial motions part of the inherent time requirements [Emphasis added].
130In the case-at-bar, a timely Charter application for disclosure could not be brought because counsel was not retained until the very eve of the trial.
131Moreover, as I stated earlier in this ruling, the characterization of the various aspects of disclosure was, in my view, not clearly thought through by the defence, and the need for a timely "O'Connor application" was never considered as appropriate by the defence throughout this proceeding.
132The Crown resisted the defence request for full disclosure of a considerable portion of the police disciplinary material arising out of the incidents at 22 Division and after Mr. Berthiaume's release based upon probative relevancy, and the defence's failure to commence an O'Connor third-party application, as required by the Supreme Court of Canada in McNeil.
133The defence chose not to bring an O'Connor application.
134In my view, a careful reading of the judgment by Justice Charron, for the court in McNeil, paragraphs 43 to 46, makes clear that the "privacy interest" of officers who are subject to disciplinary proceedings can only be protected in circumstance where they have notice and are able to participate through counsel, in 3rd party proceedings.
135Justice Charron's reasoning in McNeil explains why a third-party application is required to be brought, in circumstances of disputed relevancy, as I discussed above.
136In my view, in resisting the disclosure of the notes and disciplinary records of the 22 Division officers, the Crown was exercising its threshold "gate-keeping" function, as required by the judgment of the Supreme Court of Canada in McNeil.
137In my view, court time in this proceeding would have been used more effectively if an O'Connor application had been brought for the other police disciplinary material that was being sought by the defence, in addition to the P.C. Khawaja material. Those other officers were not part of the investigative team and, on the limited view I have so far based upon the testimony and argument before me in this application, their alleged conduct would not have had an impact on the investigation of Mr. Berthiaume or the evidence to be called in the forthcoming trial in this matter. This issue could have been directly addressed, and the appropriate police officers could have been represented, in such a hearing, all elements of the McNeil disclosure procedure, as set down by Justice Charron in that decision.
138Again, a timely O'Connor application, brought well prior to the commencement of the trial, would have permitted these issues to be resolved in a timely fashion, and permitted the trial to proceed as scheduled on 3 February 2011.
139In deciding the appropriate way to attribute the time between 3 February 2011 and 12 December 2011, I agree with the comments of the Court of Appeal in Schertzer, at paragraph 131:
Given the complexity of the case, it is our view that the inherent time requirements are necessarily longer than might otherwise be considered appropriate. In reaching this conclusion, we should not be taken as either validating or criticizing the pace of or the Crown's approach to disclosure. However, it must be borne in mind that the defence approach to disclosure will impact on the pace of the proceedings. Some counsel may choose to pursue every possible relevant piece of information in the Crown's possession, while other counsel may choose a more focused attack on specific crucial Crown witnesses. Neither approach is necessarily unreasonable, but the former approach can result in significantly longer inherent time requirements.
140Although this is not a case of either the magnitude or complexity of Schertzer, it is one that required the Crown, in exercising its "gate-keeping" role, to carefully navigate the competing interests of the accused, Mr. Berthiaume, and the various officers who were under disciplinary scrutiny for the "incidents" that occurred after the initial investigation was virtually completed.
141Using this reasoning of Justice Code in Emanuel, I have thus concluded that most of the time from 3 February to 1 December 2011 was necessary, given the lack of a timely O'Connor application, to permit the Crown to consult with both Toronto Police Services' corporate counsel and counsel for the Toronto Police Association, and for those legal services to conduct their due diligence.
142For the above reasons, I have attributed most of this time as "inherent time requirements" and thus only attributed two months and 8 days of this time period to institutional delay.
143I will now address the issue of prejudice.
3.2(a): Prejudice
144In R v Godin 2009 SCC 26, at paragraphs 29 to 32, Justice Thomas Cromwell reviewed how trial judges should evaluate the issue of prejudice. He supported the trial judge's view that actual prejudice had taken place where the over-all delay of 30 months in a complex sexual assault case had contributed to a number of types of actual prejudice:
29 The Court of Appeal disagreed with the trial judge's analysis of prejudice and found that any prejudice to the accused's interest in a fair trial was too speculative to be considered. Partly on this basis, the Court of Appeal found that the delay was not unreasonable. I respectfully disagree. In light of the length of the delay, of the Crown's failure to explain the multiple delays adequately, and of the prejudice to the accused's liberty and security interests - if not also to his interest in a fair trial - the delay in this case was unreasonable.
30 Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.
31 The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice"prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn". Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.
32 This approach was reflected in the trial judge's reasons, where he wrote that the delay in this case was "well beyond any reasonable interpretation of the [Morin] guidelines" (2007 CarswellOnt 5364, at para. 20) and that the appellant had suffered prejudice as a result. The judge referred specifically to the fact that the charges had been hanging over the appellant's head for a long time and that he was subject to "fairly strict" bail conditions (para. 22).
145An argument for additional prejudice resulting from the delay in this case is predicated on Mr. Berthiaume's employment as a police officer. In his testimony before me, I learned from Mr. Berthiaume that he is a Police Constable with the Halton Regional Police. He has not been subject to any previous disciplinary measures.
146He testified before me that as a result of these charges before the court in November of 2009 he was taken off the road and put on a very limited "central lock-up" duty, looking after prisoners that are brought in over a twenty-four-hour period, until they are released or remanded.
147He testified that as a result of these charges, from November of 2009 to February of 2011, a period of thirteen months, he was off the road and not assigned any investigative work.
148He testified that during that thirteen month period he was essentially sitting behind a desk, watching prisoners being brought in and out of the station on a video monitor, and then going to the cells and knocking on each cell door to be sure that the prisoners are okay.
149He testified that since February of 2011 he has been permitted to resume road duties.
150In addition to his employment situation, in his affidavit material sworn 9 June 2011, in support of his application for a stay of these proceedings, Mr. Berthiaume deposes:
Since my arrest on 28 November 2009, I have experienced great stress due to this ongoing matter before the court. I am eager to defend myself against these allegations but have been prejudiced by the unreasonable delay in bringing this matter to trial. As a result of unnecessary delay, now approaching nineteen months, my recollection of the events in question has diminished, and I am greatly concerned that I will not be able to recollect events to put forward my best answer and defence to these charges.
In addition, the Crown's refusal in providing my defence counsel necessary disclosure and resulting delay has caused me great financial stress. This delay is through no fault of my own or my defence counsel, but is directly attributable to the Crown's refusal to or neglect to cooperate in pursuing disclosure and moving this matter efficiently forward. Time and again, I have been forced to come back to court just to receive word that the evidence involving so many officers remains undisclosed. I cannot carry on financing my defence and I need closure now. Moreover, I have had to borrow moneys that I do not have, from my family. This loan has taken weeks to pursue and obtain, which I have instructed my counsel to carry out this motion at the first opportunity today.
151Based upon the material before me in this application, I find that Mr. Berthiaume suffered actual and inferred prejudice as a result of the delay.
152In my view, he suffered actual prejudice due to the financial costs of this extended pre-trial process, and emotional stress because of the impact this matter may have on his future prospects in his chosen line of work, that of law enforcement.
153I also agree that there has been related "inferred prejudice" due to the passage of time without the matter being resolved.
154It is clear from the reasoning in Godin that there will be cases in which "actual" and "inferred" prejudice require a stay, despite society's well-founded interest in the resolution of criminal prosecutions with a trial on the merits, and despite a relatively short history before the courts.
155However, in my view, this is not one of those cases.
156Except for the obvious "disclosure disputes" that have confronted and consumed all of the court time to date, the case-at-bar is not an unduly complex one, and the delay in this case does not give rise to the same type of "memory loss" or "disappearance of evidence" that is referred to in the much more complex proceedings and longer delays reviewed in Godin, Schertzer and other such cases cited by the defence.
157As to the possible impact on Mr. Berthiaume's future career in law enforcement as a police officer, Mr. Berthiaume has now returned to his road duties.
158Although I have great sympathy for his circumstance, in my view, his career will be best preserved with a successful defence in a trial-on-the-merits.
159As mentioned above, a trial-on-the-merits also serves the public interest, as confirmed by the case law cited by the Crown.
160Perhaps most importantly, in my view, a significant portion of the delay that has occurred in this case has been due to the conduct of the litigation by the defence, as I have indicated, below, in the attribution chart, and in my reasons.
4: Attribution of Delay
4.1: Summary of Proceedings & Attribution of Time
161The following is a graph indicating how I have attributed the delay in this case:
TOTAL TIME PERIOD IN QUESTION: 5 January 2010 to 18 April 2012, 27 months and 13 days from date information sworn. (Total 11(b) delay attribution: 7 months and 29 days, just under 8 months)
| DATE PERIOD | LENGTH OF TIME | WHAT HAPPENED | DELAY CLASSIFICATION |
|---|---|---|---|
| 28 November 2009 – 10 January 2010 | 1 ½ months | Period to first appearance. | Intake period (neutral) |
| 11 January 2010 – 7 February 2010 | 27 days | First appearance to set date. Accused appears with duty counsel. Initial disclosure package given. | Intake period (neutral) |
| 8 February – 28 February 2010 | 21 days | Second appearance. Accused indicates he has had a self-represented Crown pre-trial (or "CPT"), and wants to speak to the pre-trial Crown. • No counsel retained or appearing | Intake period (neutral) |
| 1 March 2010 – 28 March 2010 | 28 days | Defence counsel (Mr. Costa) first appears for accused, does not go on the record. • Seeks additional disclosure, including "McNeil information", booking room DVD, breath room DVD and 911 audio tape. | Intake period (neutral) |
| 29 March 2010 – 18 April 2010 | 20 days | Accused appears on his own behalf. • Acknowledges receipt of booking room DVD and 911 audio tapes. • Accused says breath room DVD disclosure is still outstanding. • Requests adjournment to 19 April 2010. | Intake period (neutral) |
| 19 April 2010 – 16 May 2010 | 27 days | Accused appears on his own behalf. Officer-in-charge has not responded to Crown's queries regarding breath room DVD disclosure • Crown requests adjournment to 10 May 2010, accused asks for further 7 days | 27 days, actions of Crown, for failure to make timely disclosure |
| 17 May 2010 – 30 May 2010 | 14 days | Defence counsel (Mr. Costa) appears for accused, still does not go on the record. • Breath room DVD still not available. • Mr. Costa indicates he will arrange a further CPT. | 14 days, actions of Crown, for failure to make timely disclosure |
| 31 May 2010 – 11 July 2010 | 1 month, 12 days | Defence counsel (Mr. Costa) appears for accused, not on the record. CPT held. • Counsel ready for judicial pre-trial (or "JPT"). | Intake period (neutral) |
| 12 July 2010 – 5 August 2010 | 24 days | Defence counsel (Mr. Costa) appears for accused, still does not go on the record. Accused does not appear. • Judicial pre-trial held 12 July 2010, further adjourned. • Discretionary bench warrant issued for accused as counsel not retained. | Intake period (neutral) |
| 6 August 2010 – 16 December 2010 | 4 months, 11 days | Accused does not appear for set date appearance, discretionary bench warrant extended. Trial date set, target date 3, 4 February 2011, w/ or w/out counsel. Counsel not yet retained. • 3 letters from Mr. Costa seeking disclosure of "McNeil information". | 1 ½ months, institutional delay Remainder intake period, as counsel not retained |
| 17 December 2010 – 2 February 2011 | 1 ½ months | Confirmed trial dates Confirmed retaining of trial counsel. Accused in Nova Scotia and counsel's agent requested adjournment 7 January 2011 to confirm trial retainer/dates. Court put matter over to first scheduled trial date instead. • JPT can't be held on 17 December because counsel not retained. • Pre-trial letter from Mr. • Costa sent on 13 January 2011, confirms retainer to act as trial counsel. • Same letter also continues to seek McNeil disclosure | 1 ½ months institutional delay |
| 3 February 2011 – 31 March 2011 | 1 month, 28 days | Arraignment. Crown provides some police misconduct disclosure, but contests production of additional information. • Disclosure hearing held, with evidence from Myron Chudoba, office-in-charge. | Inherent time requirements (neutral) |
| 1 April 2011 – 8 May 2011 | 1 month, 7 days | Disclosure hearing for legal argument adjourned on consent • Possible McNeil disclosure not yet provided to Crown from Toronto Police Services' legal department • Parties still have not resolved disclosure issue of 911 caller's identity. • Court agreed to hear submissions on the 911 issue in writing | Inherent time requirements (neutral) Informer issues not resolved and O'Connor application not before court. |
| 9 May 2011 – 16 May 2011 | 8 days | 911 caller identity ruling made • Submissions regarding McNeil considerations and vetting resumed. Adjourned for "progress report" from Crown on what she was willing/able to obtain. | Inherent time requirements (neutral) |
| 17 May 2011 – 21 June 2011 | 1 month, 4 days | Defence counsel does not attend; adjourned to June 22nd 2011. | Actions of the accused |
| 22 June 2011 – 8 November 2011 | 4 ½ months | 11(b) stay application before court, accused testifies on it. • Disclosure still contested. Crown argues information sought is irrelevant, and no O'Connor application before Court. Court orders production. | 2 months, 8 days institutional delay Remaining 2 months, 8 days inherent time requirements (neutral) |
| 9 November 2011 – 30 November 2011 | 21 days | Disclosure hearing and stay application evidence (continued). | Inherent time requirements (neutral) |
| 1 December 2011 – 22 February 2012 | 2 months, 20 days | Disclosure hearing and stay application evidence (continued). • Defence counsel submissions on hearing and application. • Crown files submissions material in writing. | 1 month, 10 days institutional delay Remainder inherent time requirements (neutral) |
| 23 February 2012 – 18 April 2012 | 1 month, 26 days | Defence counsel replies on the record to the Crown's written submissions. • Adjourned for ruling on Sections 7 & 11(b) stay application • Trial time reserved | Inherent time requirements (neutral) |
5: Ruling
162In the result, regarding the first Charter application, dated 13 January 2011, seeking "fundamental disclosure" in the form of McNeil disclosure, and the identity of the "911 caller" I am able to rule at this juncture that the Crown has met its threshold disclosure obligations in this proceeding prior to the commencement of the trial.
163I therefore will reserve, until I have heard the evidence in the trial proper, the balance of this initial application.
164In the result, regarding the second Charter application, dated 9 June 2011, alleging "unreasonable delay", I have calculated that seven months and twenty-nine days of this case are properly considered as delay for s. 11(b) purposes. This includes six months and eighteen days of institutional delay, and a further forty-one days of delay occasioned by the Crown.
165I therefore find, as a fact, that the delay in this case has not infringed Mr. Berthiaume's right to a trial within a reasonable time, as protected by Section 11(b) of the Charter.
166I have further concluded, following Schertzer, that the societal interest in this matter being heard on the merits outweighs any prejudice that Mr. Berthiaume may have suffered in this proceeding.
167In the result, the application for a stay pursuant to Section 7 & 11(b) of the Charter is dismissed.
168Again, as I stated initially in paragraph 7 of this ruling, I am also asking counsel to communicate with each other and with the trial coordinators and carefully review their trial-time estimates, which I have found, above, to be unreasonable, and to confirm that they will be ready to conduct the trial proper for this matter commencing on the next scheduled court date, 18 April 2012, and have scheduled sufficient trial time to complete the matter.
Released: 10 April 2012
Signed: "Justice Paul H. Reinhardt"