Ontario Court of Justice

Date: August 8, 2016

Between:

HER MAJESTY THE QUEEN

— AND —

GIUSEPPE TROCCHIA

Before: Justice F. Javed

Heard on: July 19, August 4, 2016

Reasons for Judgment released on: August 8, 2016

Counsel:

• B. Guertin, counsel for the Crown
• B. Brody, counsel for the defendant Giuseppe Trocchia

F. JAVED J.:

I. Introduction

1On May 24, 2015 the Applicant, Giuseppe Trocchia was charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit and impaired operation of a motor vehicle contrary to s.253(1)(b) and s.253(1)(a) of the Criminal Code.

2His trial is scheduled to commence before me on August 18, 2016. Mr. Trocchia alleges that his right to trial within a reasonable period of time as guaranteed by s.11(b) of the Charter of Rights and Freedoms (Charter) has been infringed. He seeks a remedy of a stay of proceedings under s.24(1) of the Charter.

3The total delay in this matter will be approximately 14.5 months from the date of the alleged offence.

II. Procedural History

4The motion materials were filed with the court on June 27, 2016. They included, inter alia, an application record, transcripts of the court appearances and a factum. They also included an affidavit from the Applicant asserting prejudice.

5On July 8, 2016, Mr. Guertin responded to the application submitting that it should be dismissed, as his position was that the institutional delay was 9 months and 24 days, which fell within the guidelines set by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771. He argued that the delay was not unreasonable.

6On the same day Mr. Guertin filed his materials, the Supreme Court released its decision in R. v. Jordan, 2016 SCC 27. The Supreme Court took a wire-brush to the Morin framework and developed a new framework for assessing allegations of unreasonable delay under s.11(b) of the Charter [the Jordan framework].

7On July 19, 2016, the parties appeared before the court to make oral submissions on the scheduled s.11(b) motion. Mr. Guertin sought leave to file amended materials, including a factum addressing the Jordan framework. This was not contested. Mr. Brody sought leave to amend his materials as well, including withdrawing his client's affidavit, as prejudice was no longer part of the analysis. After some discussion with the court about the timing of the events, the parties agreed that the Crown would not advance the position that the Applicant's actions or inactions, to the extent that they were consistent or inconsistent with his desire for a speedy trial, were going to be the subject of scrutiny by the court. In other words, the affidavit did not address that issue left open by the Jordan framework and thus wasn't required.

8Accordingly, on the revised record before the court, the sole issue is whether the anticipated 14.5 months it will take to complete the trial is markedly longer than it reasonably should take, thus warranting a remedy of a stay of proceedings.

III. The Positions of the Parties

9Mr. Brody's submits that 14.5 months in the Jordan framework is markedly longer than a "reasonable" period for the Durham region. In particular, the intake period of approximately 4 months was markedly unreasonable which makes this a clear case for a stay of proceedings.

10Mr. Guertin submits that the overall delay of 14.5 months is not markedly unreasonable as the defence has not met their burden. In any event, the delay falls below the presumptive ceiling of unreasonableness set by the Supreme Court of 18 months and this isn't a clear case for a stay of proceedings.

IV. Factual Background

11To place Mr. Brody's submission that the intake period was unreasonable, I propose to set out in chronological format the relevant events in the proceedings. In my view, the history will also inform the submission that the overall delay was markedly unreasonable.

Date	Event
May 24, 2015	Offence date. Applicant released on a promise to appear and given a first appearance date of June 25, 2015.
June 25, 2015	First appearance. Agent for counsel appears and obtains initial disclosure. This does not include the breath room DVD or some officer notes. Matter remanded to July 16, 2015. On the same date, counsel faxes a letter requesting disclosure of the breath room DVD and officer notes.
June 29, 2015	Crown Attorney's office responds to letter indicating DVD and officer notes would be requested.
July 16, 2015	Second appearance. DVD and disclosure outstanding. Matter adjourned to August 6, 2015.
July 19, 2015	Counsel requests for second time, breath room DVD, police notes and three other items.
August 6, 2015	Third appearance. DVD disclosure provided. Adjourned to August 27, 2015 to conduct pre-trial.
August 7, 2015	Counsel sends letter indicating DVD doesn't work and requests 2nd copy and one more item of disclosure.
August 27, 2015	Fourth appearance. A new copy of the DVD had not been provided. Crown Attorney provides their copy of the DVD to counsel. Adjourned to September 24, 2015. Counsel sends letter indicating that Crown's copy of DVD also doesn't work and requests a working copy.
September 2, 2015	Ms. Wendy Wilks at Crown's office advises that they are attempting to resolve issue with breath room DVD.
September 24, 2015	Fifth appearance. New copy of DVD not available. Crown Attorney indicated they too had requested a copy of the DVD on September 2 and 23, 2015 from OPP. Matter adjourned to October 15, 2015.
September 28, 2015	Counsel sent letter requesting DVD again
September 29, 2015	Ms. Wilks responds to counsel explaining that the OPP responded to her indicating that "my best guess is that when they switched the video over to the breath room, they didn't realize that the screen was black."
October 15, 2015	Sixth appearance. Trial date of August 18, 2016 scheduled. Counsel notes "certainly 11(b) is a consideration and that was the first date offered, and I haven't got any instructions from my client or discussed it, but it is a concern." Trial date set for August 18, 2016.

V. Analysis

12As noted, in R. v. Jordan, supra, the Supreme Court developed a new framework for assessing delay. At paragraph 105, the court summarized the new framework as follows:

• There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

• Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable.

• Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

• For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law.

13The overall delay in this case will be approximately 14.5 months, which falls below the new presumptive ceiling of 18 months. But that doesn't end the analysis. The court may still order a remedy in clear cases where the defence can meet its onus that the delay is nonetheless unreasonable. To do so, the defence must surmount two hurdles: first, the defence must take meaningful steps to expedite the proceedings. I find that Mr. Brody's law firm did so in this case. In submissions, Mr. Guertin conceded as much. Letters requesting disclosure were promptly sent and the office followed up on communication relating to the missing DVD. Reasonable positions, such as taking the Crown's copy of the DVD at a set date appearance and speaking with the case management clerk, Ms. Wilks, when the defence could have simply obfuscated to buttress the delay record, were avoided. It is the second hurdle of determining if the delay will be "markedly unreasonable" which is the main issue on this application.

14The Supreme Court in Jordan, supra explained this factor beginning at paragraph 87. I will reproduce all the relevant passages below:

Reasonable Time Requirements of the Case -- Time Markedly Exceeded

87 Next, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.

88 The reasonable time requirements of the case will increase proportionally to a case's complexity. As Sopinka J. wrote in Morin: "All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins" (pp. 791-92).

89 In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.

90 Where the Crown has done its part to ensure that the matter proceeds expeditiously -- including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses -- it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.

91 Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge (Morin, per Sopinka J., at pp. 791-92).

15The Supreme court made it clear that the new framework will apply to cases already in the system, thus the analysis must be applied contextually and flexibly. The parties agreed that this is a "transitional" case, where context would be important. However, Jordan went on to note that in transitional cases that fall below the ceiling of 18 months, the defence need not show that it took initiatives to expedite the case, although the inactions of the accused or counsel may be considered as to whether they demonstrate a desire for a speedy trial (Jordan, supra at para. 99). I have already noted above that Mr. Guertin is not taking the position that either Mr. Trocchia or Mr. Brody took steps inconsistent with their desire for a speedy trial. I agree with this concession.

16Mr. Brody submits that 14.5 months in the Durham region for a "straight forward" drinking and driving case is unreasonable. He asks that I take judicial notice of local standards in Durham where 14.5 months would be unreasonable and in the Morin era, may have resulted in a stay of proceedings.

17Both Mr. Brody and Mr. Guertin submitted that the Supreme Court did not appear to provide any definitive direction as to how one determines whether a case has taken (or will take) markedly longer than a similar case, therefore becoming "unreasonable". This is a challenging exercise but the Supreme Court may have done this deliberately to vest trial courts with discretion to determine this issue based on the specific case before them. Determining what is markedly reasonable will therefore depend on many factors unique to each case. In my view, this would also mean that the jurisprudence developed in the Morin era about specific factors that might make delay unreasonable, would still apply within the broader Jordan framework. For example, here the delay calculus is dependent on an allegation of late disclosure. It could not be that the principles developed in the Morin era in relation to delay attributed to disclosure issues would no longer be relevant. Instead, they remain relevant within the broader umbrella of whether the overall delay was unreasonable. Courts are directed to take a "birds eye" view to these issues without having to parse out delay. Clearly, disclosure issues will inform some of the broader factors that the Supreme Court did identify such as the complexity of the case, local considerations and whether the Crown took steps to expedite the proceedings.

18On this record, the real source of the delay was the time it took to get a definitive answer that there was no functioning breath room DVD. In our "digital world", to borrow the language of Justice Trotter in R. v. Farry, [2010] O.J. No. 1977 (SCJ), getting this answer shouldn't have taken long at all. In Farry, supra, Trotter J. lamented that this type of police delay is a common occurrence in the Ontario Court of Justice and this type of disclosure should be made available at the earliest opportunity. Mindful of these comments, along with the considerable efforts by Mr. Brody's firm in trying to rectify the confusion, I still have to consider how this delay was occasioned and whether, in the circumstances of this case, it means that the case will take markedly longer than usual.

19Despite Mr. Brody's able submissions, I cannot accede to his position that the delay in this case will be markedly unreasonable. I arrive at this conclusion for the following reasons:

(1) I agree that this case does not appear on its surface to be complex. It is set for 1 day and there are no Charter motions. In submissions, I heard that the non-functioning DVD will not result in a s.7, lost (or failing to preserve) evidence application based on the information he received from the Crown. At most, Mr. Brody may file an application alleging breaches of s.8/s.9/s.10(b) of the Charter. In submissions, Mr. Brody assured me that if such were the case, the trial estimate of 1 day would still be reasonable and any delay occasioned from the late filing of Charter motion(s) would be defence delay in the Jordan framework.

(2) In the Morin era, I would have considered institutional delay, which I would have concluded to be approximately 9.5 months accounting for a reasonable intake period and the inherent time requirements of the case. At its highest, acceding to Mr. Brody's submission that he would have been ready in days, not weeks for the trial, the institutional delay hovers at 10 months. This falls within the old Morin guideline of 8-10 months of delay in provincial court. Thus, there's nothing remarkable about how long this case would have taken to complete – if the old framework were to apply. The determination of the s.11(b) motion in the old framework would have turned on prejudice and a balancing of the competing interests. Since prejudice is now built into the Jordan framework, I need not assess prejudice at this juncture. Absent prejudice, using local considerations as a guideline, 9.5/10 months is not unreasonable. Institutional delay is not static and can vary depending on many factors such as systemic issues that might exist in a jurisdiction. Mr. Brody submits that the institutional delay in this case may have been due to a shortage in the compliment of full time Justices in the Durham region. While there was some turnover in the Durham judicial compliment in 2015, it still doesn't mean that 9.5/10 months of institutional delay is unreasonable. Durham was able to absorb the turnover and still accommodate cases within the Morin guidelines. Taking a "birds-eye" view, this case doesn't stand out even in the old framework as being a clear example of unreasonable delay. I should add that my assessment of delay under the old framework is not determinative on this application but rather another means to evaluate the delay in the new framework.

(3) The overall intake period in this case was approximately 4 months. Of this period, it took approximately 3 months to get a firm answer that there was no functioning breath room DVD, which was requested by the defence. Mr. Brody submits that the Crown took little or no efforts to remedy the problem. With respect, I disagree. Jordan is clear that the Crown must do its part to make sure a case proceeds expeditiously. Much like the defence, the Crown cannot be held to a standard of perfection (Jordan, supra, at paras. 85, 90). The Crown and by extension, Ms. Wilks in the case management office, made genuine efforts to address the issue of the DVD. This isn't a case where the Crown refused to disclose something that was requested in a timely way. Rather, initial disclosure of the DVD was made and the Crown was proceeding on the same basis as the defence, namely, that a DVD of the breath room existed. It would be unrealistic for the Crown to vet all DVD videos that are provided by the police to determine if they work. The frustration in Farry, supra was directed at the police in not providing timely DVD disclosure, not the Crown. While these two branches may be indivisible for delay purposes, I still have to view the actions of the Crown in response to the police. Here, the police provided a DVD of the breath room assuming the testing procedures were recorded but nobody bothered to check if the recording equipment was functioning. This is not an unreasonable assumption on part of the Crown. The answer was received on September 29, 2015 and still remained unclear as to what really happened. The fault, if any, lies at the feet of the police who didn't check to see what was on the DVD that they provided. Regardless, the Crown and the defence were in the same position, with Mr. Brody's firm taking active steps to remedy the confusion. While it would have been preferable and perhaps easy to check to see if the DVD was functioning, assuming it existed (which would be the norm) the fact that this wasn't done, doesn't negate the genuine efforts by Ms. Wilks and the Crown to remedy the confusion. This isn't a case where one side was unfairly advantaged over another and the case languished because of it. An early pre-trial would have prompted the parties to the issue but this was not done. There was no way for the Crown to know that the DVD didn't function properly. I am not prepared to find that the Crown was derelict in their duties in not being proactive about this issue. They offered their copy when asked and responded in a timely way. I find that the Crown acted reasonably. Given the Jordan framework, the duties on the Crown to explain delay become more pronounced when the 18 month ceiling is breached. Here, that isn't the case.

(4) Fourth, I have also considered how to attribute the delay occasioned by the non-functioning DVD as I would have done so in the Morin framework. In R. v. Kovacs-Tatar, [2004] O.J. 4756 (C.A.), the Court of Appeal at paragraph 47 commented that because the Crown has an ongoing disclosure obligation, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. Further, in R. v. N.N.M., [2006] O.J. No. 1802 (C.A.), Juriansz J.A. concluded that where initial disclosure has been made, the defence is not necessarily entitled to refuse to proceed to the next step in the process. At paragraph 37, he wrote:

Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial (See also R. v. Lahiry, 2011 ONSC 6780 (SCJ) at para. 114).

In this case, the Crown did provide initial disclosure of the breath room DVD, albeit, the DVD was not functioning. In Lahiry, supra, Code J. added that it is only when the missing disclosure is truly material to "crucial steps" in the process like election and plea that it will justify delay at the early stages. I do not interpret Jordan to make this line of authority no longer applicable. In this case, a pre-trial, judicial pre-trial and even a trial date could have been set much earlier, even with the missing DVD of the breath room video. In saying this, I am mindful of the comments of Trotter J. in Farry, supra who said that breath room DVD's have great evidentiary value and assist in making informed decisions. However, I don't see why a trial date couldn't have been scheduled without the breath room DVD and the issue pursued in the interim. Certainly the issue could have been canvassed at a pre-trial. This seems to be the approach suggested by Code J. in Lahiry, supra, who said the following at paragraph 114:

Lawyers can generally adapt and adjust their trial strategy to ongoing disclosure, received from the Crown while awaiting trial. If the Crown is not being diligent in providing disclosure sufficiently in advance of the trial date, then setting confirmation dates and target dates for trial will solve the problem. By bringing the case back to court, a month or two before the target trial date, defence counsel can create a check to prevent dilatory Crown disclosure practices.

While the breath room video has great value, it is not like an in-camera recording, which potentially captures, in real time, an impaired driving offence being committed. Similarly, in a failing/refusing to provide a breath sample allegation, the breath room DVD may constitute evidence of the offence. In those cases, delaying the setting of the trial date may be entirely reasonable. Here, the breath room DVD would have captured the breath testing procedures and in my view was not critical to setting the trial date. I do not fault Mr. Brody's law firm for pursuing relevant disclosure to make full answer and defence. He should be commended for diligently pursuing the issue, where many simply wouldn't have. Notwithstanding his diligence, I can't conclude that the DVD was "crucial" to borrow Justice Code's language, to setting a trial date. In arriving at this conclusion, the failure to provide timely DVD disclosure by the Crown (or police) could take on greater prominence in a case that exceeds 18 months. In the post Jordan era, it could also have consequences in cases where the disclosure arrives late which necessitates an adjournment or a continuation of a trial. In R. v. Korzh, [2016] O.J. No. 3910 (SCJ), Justice Miller held that the trial extension in that case was due to the failure of the Crown to provide disclosure as requested. Miller J. didn't have to adjudicate on the s.11(b) issue and nor is this issue triggered in this case. The delay here was due to the three months it took to get an answer on the DVD issue, which could have been mitigated by setting a trial date. To be clear, the determination of this application does not hinge on the efforts of the defence (or the Crown) for that matter in setting a timely trial date but placing this issue in context does provide another means of evaluating the reasonableness of the delay.

(5) Finally, I have considered Mr. Brody's submission that I should take judicial notice that 14.5 months delay in Durham is unreasonable. Again, I disagree. The Supreme Court in Jordan, supra seems to direct trial courts to be mindful of local considerations, drawing on personal experience. In addition to drawing on this experience, I endeavoured to determine the pulse of the jurisdiction in 2015/2016. I did so by reviewing any reported judgments by my colleagues on drinking and driving matters, that would also be available to counsel and the public. Needless to say, unreasonable delay was not an issue in Durham in 2015. I also went back a year to see if any trends were emerging. I discovered a couple of reported cases. Justice DeFreitas in R. v. Shanks, [2014] O.J. No. 5362 didn't stay the case where the overall delay was 16 months. A year prior, Justice MacLean in R. v. Douale, [2013] O.J. No. 3464 also didn't stay the case, which had overall delay of 15.5 months. In a decision that I authored, which was still pre-Jordan, (R. v. Boss, [2016] O.J. No. 643) I did stay the proceedings where the overall delay was 18.7 months (thus above the guideline of 18 months). In that case, there were two Crown adjournments of the trial and actual prejudice. All of these decisions were in the Morin era, where prejudice was part of the calculus. Of course, prejudice no longer applies. I am mindful that there may be unreported decisions on this issue which may go the other way, thus my review is not entirely instructive or even required for that matter. However, my purpose in doing so was not to undertake a comprehensive analysis, but rather to get a general pulse of the jurisdiction. I am not suggesting that this approach is required in all cases but given the early days of the Jordan era, potentially helpful. I found that in 2015/2016, 14.5 months of overall delay did not appear to be markedly unreasonable.

VI. Conclusion

20Considering all the factors as a whole, I am not persuaded that this is a clear case where the delay is going to be markedly unreasonable. I am not satisfied that on this record, the defence has met their onus. Accordingly, the application under s.11(b) of the Charter is dismissed.

21The matter will be remanded to the trial date of August 18, 2016. As discussed with the parties, if there's going to be a Charter motion(s), the parties have agreed to abridging the rules and accepting short service. Mr. Brody has agreed to file materials, if any, by August 12, 2016. Mr. Guertin has agreed to file a response, if any, by August 16, 2016.

22I thank the parties for their helpful submissions.

Released: August 8, 2016

Signed: "Justice F. Javed"