Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
Ms. B. McCallum, for the Crown/Respondent
ā And ā
Helen Couto
Mr. J. Lapid, for Applicant
Heard: October 28, 2014
NAKATSURU J.:
Analysis
1The applicant is charged with operating a motor vehicle with a blood alcohol level over the legal limit. She brings an application pursuant to s. 24(1) of the Charter alleging that her right to a trial within a reasonable time under s. 11(b) has been infringed.
2For the following reasons I have dismissed the application.
A. The Length of the Delay
3The factors to be considered on an application such as this are set out in the case of R. v. Morin (1992), 71 C.C.C. (3d) 1 at 13 (S.C.C.). These principles have more recently been considered in two binding decisions: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.J.) and R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.).
4I will now turn to those factors.
5It is not disputed that the delay in this case warrants examination.
B. Waiver
6Upon review of the record of proceedings and the application record, there have been explicit waivers of s. 11(b). It is agreed by the parties that there has been a waiver of s. 11(b) from February 12, 2013, to November 17, 2014. This waiver covers the time period from the second trial date to the trial date scheduled for November 17, 2014.
C. The Reasons for the Delay
7There is a large area of agreement between the parties. I am mindful that I do not have to accept the characterization of the parties regarding the cause of the delay. That said, given the record before me and the position of the parties, the focus of the application pertains to a certain period of the time. At this point, I will scrutinize in some detail what happened in the history of the proceedings during that time:
Chronology
June 7, 2011. The information is sworn. It is agreed between the parties from June 7, 2011, to November 7, 2011, a period of 5 months, should be considered neutral intake. During this time, disclosure was obtained by the applicant. It was not until November 7, 2011, that the applicant retained counsel and was ready to set a date for trial.
November 7, 2011. Duty counsel spoke for defence counsel. Defence counsel provided a letter with his available dates. The earliest date provided by defence counsel was May 31, 2012. The Crown advises the presiding Justice of the Peace that this defence date was beyond the dates the Court had available to set a trial date. As a result, the applicant was sent to the trial coordinator's office to secure a date beyond the available dates. A trial date of May 31st was set.
May 31, 2012. On the first trial date, the Crown brought an adjournment motion on the day of trial. The defence opposed the motion. At this motion, P.C. Rievel Kan testified. He testified that as the trial date approached, the detective in charge had to notify the firefighter, Mr. Michael Mann, who was a material witness to come to court. It was done in approximately March of 2012. The firefighter's father advised the detective that his son had gotten cancer and was probably unable to attend court. Two weeks prior to the trial date, P.C. Kan had a conversation with the firefighter and was advised that due to his therapy, the witness would not be able to stand for long periods of time and was concerned about the case. He said he would try and come. If there was an adjournment, Mr. Mann advised that he would try to attend the next time. The witness was undergoing therapy at the moment so the officer did not go into details as Mr. Mann did not seem very happy about his health condition. P.C. Kan was advised it might take a month or so for his therapy to finish and then he had to recuperate. The officer testified that he was satisfied that he could not attend on the trial date but could on a future date unless his health was not good enough. Based on this conversation, P.C. Kan felt it was most likely that Mr. Mann would not be attending the trial. However, the witness did not outright say that he was not coming to trial. P.C. Kan testified that the witness seemed quite concerned about the case so that if his health allowed him to come, P.C. Kan believed that he would come if he could. When P.C. Kan spoke with Mr. Mann, he was very ill and concluded the witness was not feeling well. P.C. Kan left a voicemail with the Crown right after his conversation with Mr. Mann. P.C. Kan received a note to call the specific Crown so he did. He did not follow up to ensure the Crown got the message. He did not advise defence counsel. PC. Kan was only asked to inquire whether this witness was going to be able to come to court on the trial date. The objective of the message he left for the Crown was to advise the witness was not coming. The officer had no contact with the witness since that conversation two weeks prior since the officer was on his days off.
The defence opposed the adjournment on the basis of a lack of notice. He argued that the state knew months ago, confirmed two weeks ago, that there was no reasonable expectation that the witness would show. Justice Caldwell granted the adjournment. She found there was a public interest in having a trial. That said, she found that the defence should have been told ahead of time about the adjournment. She held that two weeks from the trial date it was virtually a hundred percent certainty that the witness would not be attending and the Crown was going to be seeking adjournment. She further held "I would not say prior to that because it sounds like there was some uncertainty about his health, but as of two weeks ago, the message should have been conveyed to counsel." She understood that the defence would incur additional costs due to the adjournment but this was the only prejudice caused by the adjournment. She found that neither the Crown nor the defence needed to be held to the standard of perfection before an adjournment was to be granted. Justice Caldwell canvassed the prospect of starting the trial herself and putting the matter over for the remaining witness. The defence submitted that this would not be the right way to proceed given that the witness was a key witness. The Crown submitted that the evidence should be brief as there were no Charter applications. The Crown asked to speak to the officer to consult. The defence argued again he did not want to start the case as he could not cross other witnesses until he heard from the first witness at the scene. The Judge on that basis put the case over. Defence counsel stated he did not have his available dates that day so he asked for one week to set a date and he would take responsibility for that week. The Court stated that some follow up was required as it sounded like Mr. Mann's illness was serious. Justice Caldwell asked that a note be made to try and expedite the next trial date keeping in mind that there could be issues about how soon the firefighter could be back. She asked that these delicate inquires be made and the Crown agreed.
June 7, 2012. An agent appears for defence counsel. The Court advises the next available date is February 20, 2013. The agent agrees with that date. The Crown asks the Court if the matter could go to the trial coordinator to secure an earlier date since this is a second trial date. When the case is spoken to again, the trial coordinator could not offer any earlier date than the assignment court could. The estimate for trial was six hours. At this time, the next available date offered is February 12 and the defence and Crown agree to the date.
February 12, 2013. On this trial date the defence requests an adjournment in order to properly prepare a Charter application. The adjournment is granted and the defence expressly waives her s. 11(b) rights. I note that there was another trial date on January 30, 2014, which was adjourned. There are also transcripts of certain court dates that are missing. However, given the position of the parties and my review of the January 30th record, this situation is not an obstacle for the resolution of the application. On January 30th, ultimately a trial date of November 17, 2014 was set. October 28th was chosen to argue the s. 11(b) application.
8The Crown and defence do not agree with respect to how to attribute the delay from the first set date to February 12, 2013. The Applicant submits that there is 15 months of operative delay. The Crown submits that at most, the operative delay is 8 months 21 days.
9One relevant area of disagreement is from November 7, 2011, to May 31, 2012; the delay to the hearing of the first trial date. The defence submits that this is all institutional delay. The Crown argues that 2.3 months of this should be attributed to neutral delay required for the defence to prepare and some 4.5 months should be considered institutional.
10The decisions of Lahiry and Tran mandate that some time be attributed to the need for the defence to prepare and be available for trial. In terms of preparation, as far as I am aware, there is nothing particularly complex about this case. That said, the availability of counsel retained by the applicant is a key factor here. Just practically speaking, if the applicant's counsel is not available for a certain period of time, this is an important consideration in determining how to attribute the delay. This is especially so on the facts of this case. Here applicant's counsel sent a letter on November 7, 2011, indicating the first available date he had was May 31, 2012. The Court was able to offer earlier dates than this. Indeed, given the date suggested by defence counsel, the Court was unable to give a trial date in the assignment court since the date suggested by defence counsel was beyond the available court dates it could set on that day. For this reason, the defence was told to go see the trial coordinator. Realistically, the reason why the trial date could not be set until May 31 was due to the unavailability of defence counsel.
11I appreciate that defence counsel cannot be expected to instantly open up their calendar and find available dates especially if they are busy. However, in this case, it was not that the Court could not accommodate dates being suggested by counsel because those dates were already booked in assignment court. Rather, defence counsel only offered a trial date beyond what the Court could offer.
12The applicant argues that since one cannot tell from this record what the first available dates the Court had to offer, that at best, some of the alleged institutional delay could be "chipped away" given the unavailability of defence counsel. To the contrary, I would be more inclined to treat the whole of this period as neutral delay. It can hardly be an appropriate characterization to say the cause of the delay was institutional due to the court being unable to offer an earlier date.
13While I would be inclined to treat the whole period of time as neutral, given the Crown position taken, I will accept that some of the period of delay should be attributed to institutional reasons and some should be considered as neutral given the need for the defence to prepare and be available. The suggestion made by the Crown seems fair and in keeping with the authorities. Therefore, 2.3 months will be treated neutrally and 4.5 months will be characterized as institutional delay.
14The second period of delay in dispute is the time period from June 7, 2012, to February 12, 2013. The week long period from May 31 to June 7th should be attributed to the defence given that the defence requested that time before it was willing to set a new trial date.
15For this material block of time, the defence argues that the entire time should be considered institutional. The Crown submits that 4 months should be treated neutrally and 4.2 months considered institutional. I agree with the Crown submission.
16The adjournment was necessitated by the illness of a material Crown witness, Mr. Mann. An illness of a witness is one of those unforeseen developments during a trial that generally should be treated neutrally: see Tran at para. 48. The following comment made in R. v. A.J.W., 2009 ONCA 661 at para. 35 has application here:
Delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case. As Hill J. said in R. v. Hoffner at para. 41 "Such a contingency, while unfortunate and unexpected, is nevertheless an inherent feature of the litigation process. In turn, therefore, reasonable delay to a new trial date is prima facie considered neutral." Hill J. went on to make the important point that not all the ensuing delay is necessarily neutral. If the time to the next trial date is itself unreasonable, some portion of the delay is properly considered institutional delay.
17In the case at bar, the applicant argues that the adjournment and the delay caused by that adjournment should be attributed to the Crown. In essence, the applicant argues that timely notice was not given to the defence for the adjournment application. It is submitted that the police knew for a long time, months before, that an adjournment due to the unavailability of the witness was required but failed to adjourn the case until the day of the trial. At the very least, Justice Caldwell found that the defence should have been given notice two weeks prior to the trial date. Although, it was not argued explicitly before me, I understand the applicant to submit that had timely notice been given, then the delay caused would not have occurred or at least, could have been minimized by securing another trial date.
18I do not find this submission persuasive. First of all, the comments made by Justice Caldwell were made during an adjournment application. It is not for me to revisit her ruling. She further found that the police could not be faulted for not bringing an adjournment application when it first discovered that Mr. Mann was suffering from cancer. Justice Caldwell held that until P.C. Kan spoke with Mr. Mann two weeks prior to trial, there was some uncertainty about Mr. Mann's health and the police/Crown could not be faulted for failing to advise the defence. I have reviewed P.C. Kan's testimony and I agree with Justice Caldwell. Mr. Mann was a willing witness who wanted to testify but had been diagnosed with cancer. While a serious illness, the course of that illness like other illnesses is not necessarily straightforward and progressively debilitating. When first advised of that illness, it seems reasonable to me that an adjournment application would not be brought months before the trial date given the uncertainty regarding whether the witness would feel well enough to testify.
19Secondly, even though the Crown could be faulted for failing to advise the defence two weeks before the trial date, this failure does not materially change the reason and need for the adjournment. Mr. Mann was suffering from a serious illness not a temporary medical condition such as a cold. He was undergoing therapy at the time. The information received was that this therapy was to last a month and then time was required for recuperation. Even if the adjournment application was brought 2 weeks earlier, this would not have affected the inevitable fact that the adjournment would have been granted and a significant delay in getting a new trial date would be incurred.
20So, while the Crown bore some responsibility in terms of failing to advise the defence of its need for an adjournment, it should not bear responsibility for the delay caused by that adjournment. The reason for the adjournment falls squarely into the comments made in A.J.W. Therefore, some of the delay should be considered neutral.
21While some of the delay should be considered neutral, not all of it should be. Some of the delay should be attributed to institutional delay. I conclude this for the following reasons. It is clear that it was recognized that the second trial date should be expedited. Justice Caldwell made such comments in granting the adjournment. It is also clear that at least the Crown on the set date appearance of June 7 attempted to get an earlier date in keeping with the need to expedite the trial date. This could not be accomplished by the trial coordinator due to the unavailability in the judicial calendar. While the assignment court offered a minimally earlier date, it seems clear to me that part of the reason a February trial date was set, was due to the fact that an earlier trial date was not available to the system.
22Another reason in finding some institutional delay is that while Mr. Mann no doubt suffered from a serious illness and required some time to recover well enough to testify, the record is unclear as to when he was able to do so. Nothing is said on the record nor has the Crown offered any evidence on this application. Indeed, Justice Caldwell asked that some inquiries be made before setting a new date to ensure an appropriate date was chosen.
23In light of these circumstances, some of the delay should be considered neutral and some institutional. I accept the Crown's division of the delay. It makes sense and is consistent with the record. Based on the information received by P.C. Kan, some time was required for the therapy to finish and for Mr. Mann to recuperate. On this record, an allocation of 4 months for this to occur is reasonable and should be treated neutrally. Given that this was going to be a second trial date, the expressed need to expedite the trial, and the defence concerns about the prejudice being suffered by the applicant as expressed during her opposition to the Crown adjournment, the total 8.2 months of delay is neither speedy nor reasonable. Therefore, not all the time to the second trial date should be considered as neutral and 4.2 months will be characterized as institutional delay.
24In conclusion, the operative length of institutional delay I am dealing with on this application is approximately 8 months and 21 days. This is well within the Morin guidelines.
D. Prejudice
25Both inferred prejudice and actual prejudice are considerations in the assessment of prejudice. In addition to inferred prejudice, the parties can present evidence of actual prejudice or evidence negating prejudice. As stated in Morin, at paras. 63-64:
Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. For example, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration or restrictive bail conditions. Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation", to use the words adopted by Lamer J. in Mills, supra, at p. 919. The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show that delay has prejudiced the accused's ability to make full answer and defence.
Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. As discussed previously, the degree of prejudice or absence thereof is also an important factor in determining the length of institutional delay that will be tolerated. The application of any guideline will be influenced by this factor.
26In this case, I find that there is no actual prejudice to the fair trial interests of the applicant. No meaningful evidence was presented on this. Further, there is no prejudice to any liberty interest as the applicant was released on a promise to appear.
27With respect to the prejudice of the security of the person, let me say I have the greatest sympathy for the applicant. She is a single mother raising a 12 year old daughter largely on her own who has in the recent past quit her employment to look after her ailing mother. No doubt she has need for her driver's license and the prospect of a criminal conviction and the loss of her license is a troubling one.
28However, in assessing this prejudice, it is only prejudice resulting from the delay that is considered. Forms of prejudice resulting from the fact of being charged are not relevant in the analysis: see R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91 (Ont. C.A.) at para. 33.
29The applicant in her affidavit averred that she was unable to further her career due to the delay and to make meaningful employment decisions due to the uncertainty of her situation. In cross, however, she admitted that she had been employed at a hair salon and at Lens Crafter while awaiting her trial. There was only one application she made as an assembly line worker but this was only a month previous to this application. However, she chose not go to the interview. She testified that this was not only because of the potential loss of her licence but the concern a criminal record may be revealed if she was convicted. Further, although understandable, her employment opportunities and searches have been limited by her need to take care of her child. Finally, she has not been working since July as she has chosen to look after her ailing mother who lives in the same house she does. In all these circumstances, I find that there is no prejudice suffered by the applicant by the delay in this regard.
30The other aspect of prejudice is the emotional and psychological stress she deals with every day. She has had to take anti-anxiety, anti-depressant, and sleep medication. Having heard the applicant, I agree that she has suffered some prejudice in this regard. Her distress is genuine and not minor given she has sought medical attention. However, she began this course of medication in the fall of the year that she was charged. This was even before she had retained counsel and set a date for her trial. In my view, this stress was generated by the fact that she was charged and not the delay. That said, I do agree that she has suffered some prejudice as a result of the delay given that she has remained under this medication for a significant period of time. As she claims, no doubt it has been exacerbated by the delay. Nevertheless, I find that the stress has not worsened significantly and she has been able to maintain her employment and look after her daughter.
31In conclusion, I find the actual prejudice proven by the applicant to be minor.
32I am not prepared to infer prejudice in this case. Here, the operative delay falls well within the guidelines.
E. Balancing Societal Interests and Conclusion
33This offence is serious given the numerous comments made by various jurists about the dangers of drinking and driving. As the seriousness of the offences increases, the societal interest in seeing the charges brought to trial increases: see R. v. Kovacs-Tatar, supra, at para. 58; R. v. Steele (2012), 2012 ONCA 383, 288 C.C.C. (3d) 255 (Ont. C.A.) at para. 31.
34At the same time, I recognize that seriousness of the offence should also cause the Crown and the judicial system to properly give such a case the attention that it deserves.
35Here the institutional delay is within the guidelines. The actual prejudice to the applicant's security of the person interest is minor. While the overall delay is long, much of the time period has been waived by the applicant. After due consideration of all the factors informing a s. 11(b) analysis, I find that the applicant has failed to discharge the onus in proving the violation. Consequently, the application is dismissed.
36I would like to thank both counsel for their careful and helpful presentation of the issues.
Released: October 30, 2014
Signed: Nakatsuru J.