Court File and Parties

Court File No.: Not provided

Date: January 17, 2014

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Victor Avellaneda

Before: Justice Leslie Pringle

Heard on: January 8, 2014

Ruling for Delay Application released on: January 17, 2014

Counsel:

• S. Loosemore — counsel for the Crown
• F. Crewe — counsel for the defendant

Pringle, J.:

1. Introduction and Overview

[1] Victor Avellaneda was arrested on December 16, 2012 for having care or control of a motor vehicle while impaired by alcohol and while having a blood alcohol content of "over 80". His trial is scheduled for March 13 and 14, 2014, some 15 months after the incident. In this application, he seeks a stay of the proceedings as a result of unreasonable delay pursuant to s.11(b) of the Charter.

[2] The legal framework for this analysis is well known. As set out in R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.), the factors that I must consider are as follows:

1. the length of the delay
2. waiver, if any, of time periods
3. the reasons for the delay, including
   • a) the inherent time requirements of the case;
   • b) actions of the accused;
   • c) actions of the Crown;
   • d) limits on institutional resources; and
   • e) other reasons for the delay, as well as
4. prejudice to the accused.

[3] In balancing the interests in relation to these factors, I must keep in mind that the primary purpose of s.11(b) is the protection of the individual rights of the accused, by protecting his right to security of the person, his right to liberty, and his right to a fair trial. Society also has an interest to be protected by s.11(b), which includes the promotion of prompt trials to ensure fairness to accused persons. As well, as the seriousness of the offence increases, so does the societal demand that the accused is brought to trial. In this case, there is a serious allegation of impaired care or control of a motor vehicle with readings of over three times the legal limit.

[4] Many of the factual matters are not in dispute for the purpose of this application, and I will briefly review them below. I am grateful to counsel Ms. Loosemore for the Crown, and Mr. Crewe for the Defence, who were able to narrow the focus of this application to two issues: the appropriate intake period for disclosure, and the appropriate calculation for institutional delay.

[5] At the end of the day I have determined that the intake period was too long in this case, and apportion 1 month and 4 days of the delay to the state as a result. In relation to institutional delay, I find 10 months and 3 days is attributable to the state. Balancing all the factors including some real prejudice, I find that the delay of approximately 11¼ months in this case was unreasonable. The charges will be stayed.

[6] Let me explain my reasons.

2. Chronology of Events

[7] The following facts and chronology are not in dispute.

[8] Mr. Avellaneda retained Jonathan Rosenthal very shortly after his arrest, and on January 10, 2013 Mr. Rosenthal wrote to the Crown's office requesting disclosure be provided as soon as possible before Mr. Avellaneda's first appearance in court. In the letter, counsel requested a number of items, including notes of all officers who took part in the investigation and copies of any in-car DVDs/videos of the accused. Mr. Rosenthal indicated that "my client is anxious to move these matters along as fast as is possible".

[9] Initial disclosure was provided on the first appearance on January 31, 2013, but it was incomplete. On February 13, 2013, Mr. Rosenthal wrote to the Crown indicating that none of the notes of the officers who took part in the investigation was included. A further request for in-car DVDs was made.

[10] Further disclosure was provided on the second appearance on February 14, 2013, and the Crown requested that a Crown pre-trial meeting be arranged. However, the next day on February 15, Mr. Rosenthal wrote to the Crown and indicated, "the disclosure provided to date is wholly inadequate. The only police notes disclosed are those of the officer who provided translation services". Mr. Rosenthal also specified that the in-car DVD for the second unit that attended the scene had not been provided.

[11] Some further communication between the offices of the Crown and Defence took place, and it appears that the investigating officers' notes were made available on February 26, 2013 and picked up on February 27, 2013.

[12] At the third appearance on March 7, 2013 the Crown again requested that a Crown pre-trial be held, and the Defence indicated that it would arrange one. A Crown pre-trial was held on March 20, 2013, and on March 21, 2013, a judicial pre-trial was scheduled for April 15th.

[13] On April 15th, the earliest trial date was set for: March 13 and 14, 2014.

[14] On November 7, 2013, the matter returned to court to canvass earlier dates, but none were available.

[15] On December 6, 2013, this motion was scheduled in accordance with the protocol in this jurisdiction, in advance of the trial. At that time, disclosure was made of the notes of some officers involved in events after the samples of Mr. Avellaneda's breath were taken, as well as the notes of the Officer-in-Charge of the case, Cst. Taylor. It appears that the in-car DVD for the second unit that attended the scene may have been disclosed then, or at least it is not disputed that it had been disclosed by the time of this application.

[16] On December 24, 2013, the Crown's office notified the Defence that some additional DVDs were ready relating to events after the taking of the breath samples, and those were picked up on January 3, 2014.

3. Intake and Late Disclosure

[17] Assessing what is reasonable for disclosure and intake in any given case is a fact specific exercise. However, it is often said that a two month period for a simple drinking and driving case is "normal": see R. v. Lahiry 2011 ONSC 6780 at para.19. In Lahiry, it was indicated that four months to provide initial disclosure was too long; on the other hand, it was also noted that it was wrong for the Defence to insist on complete disclosure before setting a date: see paras.103 and 108.

[18] In this case, essential disclosure (the notes of the investigating officers) was not provided until after the second appearance and two letters of complaint by the Defence. This basic material should have been ready at the first appearance on January 31st. As Mr. Rosenthal noted in his letter after the second appearance, its absence effectively froze the process in its tracks. It was not until this basic disclosure was provided on February 26, picked up on February 27 and then considered by the Defence, that the parties were ready to resume the normal intake process. Assuming that the Defence should have been ready to conduct a Crown pre-trial a few days after picking up the disclosure, I will notionally pick the date of March 4 as the date the process should have resumed. Accordingly I will attribute the interruption of the intake process due to late disclosure to the state, between January 31 and March 4 = 1 month and 4 days.

[19] After that, the parties moved on to conduct a Crown pre-trial and then a judicial pre-trial. Although this part of the process was not exactly expeditious, (2 weeks for a CPT and 3 weeks for a JPT), without knowing the specifics of who was available when, I will not assign "blame" to any party for these periods. In any event, these kinds of pre-trials, and specifically judicial pre-trials, are generally held to be part of the inherent time requirements of the case: see Lahiry at para. 136 re CPT; R. v. Tran, 2012 ONCA 18 at para. 34 re JPT.

[20] The Defence acted reasonably in this case in setting a date for trial even though a number of disclosure items were outstanding, including the notes of the officer-in-charge of the case and an in-car DVD of one of the scout cars attending on scene. Although potentially important, this disclosure does not appear to have been truly material to crucial steps in the process such as election and plea: see Lahiry, para. 114.

4. Institutional Delay: subtracting "Charter" readiness from the time to trial

[21] In Lahiry, Justice Code confirmed that the time necessary for defence counsel to get ready for trial must be subtracted from the total time to the proposed trial date: see paras. 25-34. This approach was adopted by the Ontario Court of Appeal in Tran at para. 32.

[22] In this case, Mr. Rosenthal said that he was available for trial within two weeks, on April 30, 2013, and he had many other available dates before the first date offered by the court on March 13, 2014. Accordingly, even though the court could not offer a trial date for another 11 months, the Lahiry calculation would require deduction of the two weeks necessary for the defence to be ready for trial, rendering the institutional delay 10½ months.

[23] However, when the date was set, the Crown took the position that trial readiness additionally included Charter readiness, and stated that the Crown position was that the Defence could not say they were ready until they had complied with the rules and served Charter notice.

[24] When Ms. Loosemore adopted the same position during this application, I initially resisted this degree of artifice in calculating institutional delay. After all, from the defendant's perspective, the time from April 15, 2013 when he wanted to set his date for trial to March 13, 2014 when the court said it could accommodate it, was an incontrovertible period of 11 months, or almost a year of Mr. Avellaneda's life.

[25] Moreover, this whole concept of taking into account "trial readiness" is the stuff of legal fiction: everyone knows that there is not going to be a trial court available for months in this jurisdiction, regardless of when counsel is ready. Accordingly, I have some sympathy for Justice Nordheimer's view expressed in R. v. Sikorski, 2013 ONSC 1714 at para. 97 that "if the true availability of dates within the court system is not clearly identified and exposed….then the consideration of the effect of institutional delay….risks becoming meaningless". As Justice Melvyn Green put it in his inimitable way in R. v. Duszak, 2013 ONCJ 586 at para. 56, "there is admittedly a certain legerdemain, if not outright artifice, in subtracting defence counsel's trial readiness from a period of systemic delay…".

[26] Nonetheless, as Justice Green pointed out in Duszak, the law is clearly set out in binding Supreme Court and appellate authorities that trial readiness must be taken into account.

[27] In Duszak, Justice Green also addresses the issue of Charter readiness in a persuasive way, such that my initial resistance to deduct this time period from institutional delay has been overcome. As he points out at paras. 57-62:

• reasonable preparation time is part of the inherent time requirements for both the Crown and Defence, citing R. v. Thomas, [2011] O.J. No. 6049 (S.C.J.);
• some inherent interval such as 2 weeks is required for the Crown to secure the attendance of witnesses before a trial can be ready in any event;
• if Charter applications are being advanced, no trial can occur until the application has been made, and then the Crown given time to respond (as set out in the rules of the Ontario Court of Justice, that is 15 days);
• there is no principled reason to treat Crown response time differently than Defence preparation time.

[28] In Duszak, experienced Defence counsel said that he could prepare and file his Charter application in one day. Therefore Justice Green calculated as follows at para. 62:

In my estimation, some three weeks is rightly assigned to the inherent time requirements of the case to allow for the Crown's response to the Defence Charter application. This period runs concurrently with those two weeks accounted for by the Crown's obligation to secure the attendance of necessary witnesses: R. v. N.N.M. (2006), 209 C.C.C. (3d) 436 (Ont. C.A.).

[29] Despite the legal fiction that is superimposed over the reality of institutional delay, the law of "trial readiness" recognizes that it is not just the court that is not ready for trial immediately, but also the parties who need to get ready for trial. To put it differently, even if the court did have an available date the very next day, the lawyers' calendars would have to be consulted, the witnesses would have to be subpoenaed, and the proposed Charter applications filed and responded to before the case would be ready to proceed.

[30] In this case, Mr. Crewe submitted that as experienced counsel in this area of the law, Mr. Rosenthal would have been able to file the Charter application in this matter the next day on April 16, 2013. I agree.

[31] Therefore, accepting as Justice Green did in Duszak, that 3 weeks would be a fair time to permit the Crown to arrange for the witnesses to attend and to respond to the Charter application, the first potential date for trial readiness in this case would have been May 7, 2013.

[32] Ms. Loosemore pointed out that Mr. Rosenthal's first available date after May 7 was May 10, 2013. Accordingly, I calculate institutional delay from May 10, 2013 to March 13, 2014 = 10 months and 3 days.

5. Prejudice

[33] Mr. Avellaneda is 41 years old. At the time he was charged, he had been working as a truck driver for 5 years. As a result of these charges, he lost his job. He is currently working as a labourer where he makes slightly less money. He says he is not well suited for this job, and would like to go back to being a truck driver. However, he feels uncomfortable looking for a driving position while these charges are outstanding, and doesn't think he would be hired.

[34] Mr. Avellaneda wanted to resolve these matters as quickly as possible, and was shocked when he learned that his trial was not scheduled until March of 2014. The charges have been hanging over his head for a year now, with another 3 months to go before trial. He has been anxious and stressed, and has had difficulty sleeping. He is also feeling worse because he is alone at the moment and hoping to sponsor his wife and daughter to come to Canada from Peru.

[35] It is clear that much of the prejudice in Mr. Avellaneda's case derives from the stress and anxiety of facing a criminal charge and not from the delay in the trial. However, the parties agree that when stress is prolonged by delays beyond the guidelines of 8-10 months set out in Morin, some actual prejudice can properly be taken into account. They agree that some prejudice caused by delay exists here, but acknowledge it is not great. I concur.

[36] However, unlike many other similar cases in this court, Mr. Avellaneda actually expressed his desire for an early trial date in both words and deeds as the process unfolded:

• even before the first appearance date, Mr. Rosenthal indicated his client was anxious to move the matter forward;
• by mid-February, when disclosure problems became apparent, counsel wrote to the Crown promptly and explained that no meaningful pre-trial could be held until basic disclosure was provided;
• a date was set for trial notwithstanding the absence of some potentially important disclosure; and
• an effort was made to obtain earlier trial dates by returning to court to canvass that possibility once it was known how far in the future the trial was going to be.

[37] These actions lend some substance to Mr. Avellaneda's averments that he was shocked and distressed by the scheduled date for trial, and give credence to his stated desire for an earlier trial date.

[38] Therefore, while Mr. Avellaneda's actual prejudice as a result of the delay was not great, I find it was real.

6. Balancing

[39] In total, I calculate the state delay as follows:

• 1 month and 4 days (late disclosure) plus
• 10 months and 3 days (institutional delay)
• 11 months and 7 days, or 11¼ months.

[40] Balancing the overall length of delay, the reasons for the delay and the prejudice to that accused, I have to take into account that this delay was outside the Morin guidelines, and there has been some prejudice to the defendant as a result of the delay. Although I appreciate that the charges are serious ones, I agree with the Defence that in those circumstances the state should have done whatever it could to ensure that the matter came on for trial in a more timely way. It is a two-edged sword for the Crown to rely on the seriousness of the charges as an important factor in the balancing equation when the case was not important enough to provide timely disclosure or give the case priority in the court calendar.

[41] In the final analysis in this case, I find that 11¼ months arising out of late disclosure and institutional delay, combined with some prejudice is too long. The Defence has satisfied me that the delay was unreasonable. Accordingly, the application is granted and the charges are stayed.

Date: January 14, 2014

Justice Leslie Pringle