Reasons for Decision

Ontario Court of Justice (East Region)

Her Majesty the Queen v. Jacob Fitts

Before: Justice David M. Paciocco – Ottawa, ON

Released: December 23, 2015

Counsel:

• Mr. M. Boyce for the Crown
• Mr. R. Auger for Mr. Fitts

I. Overview and the Law of Unreasonable Delay

[1] Jacob Fitts contends that his section 11(b) Charter right to be tried without unreasonable delay was violated by the protracted proceedings that have occurred in disposing of the alcohol driving offence he faces. That charge, contrary to section 253(1)(b) of the Criminal Code, alleges that this offence occurred on August 27, 2011. The prosecution is still ongoing after two trials, an appeal, and three complex Charter motions, including this section 11(b) application.

[2] Although the matter has been going on for more than 4 years, section 11(b) offers relief only to persons who are "charged with an offence." Mr. Fitts was not charged when he was initially arrested on August 27, 2011. The information laying the charge was sworn on September 8, 2011, and that is the start of the period that is of concern in this application.

[3] More importantly, Mr. Fitts was convicted after his first trial on February 1, 2013, a conviction that was overturned on appeal on September 18, 2013. Since the charges against him had been resolved pending his appeal, he was not "charged with an offence" while the appeal process was ongoing. Section 11(b) therefore offers no protection for this period: R. v. Potvin, [1993] 2 S.C.R. 880. The appeal period of just over six and one-half months, or 239 days, cannot therefore be considered a period of delay for the purposes of this application.

[4] As indicated, Mr. Fitts faced two trials on the same charge as the result of a successful appeal of the first verdict. The law is not settled on whether, in a retrial setting, the relevant period of delay encompasses the time it took after charge to process both trials, or only the retrial. This is because the comment of Justice Sopinka in R. v. Potvin, supra at para 66 endorsing the notion that the "constitutional clock should be rewound at the time of the order by the appellate court" is ambiguous. It is unclear whether the clock is rewound to the beginning of the appeal period continuing to show the time that passed during the first trial process, or whether it is rewound to zero, restarting the clock anew.

[5] There are cases that take both approaches, but the parties before me agree with the bulk of the authorities holding that where there has been a retrial, the delay calculation "includes the period when the charge was laid to the completion of the first trial, as well as the period from when a new trial is ordered to the new trial date": R. v. Spencer, [2004] O.J. No. 5463 at para 105 (Ont.C.J.), see also R. v. Follows, [2013] O.J. No. 5790 (Ont.C.J.), and R. v. Konnafis, [1996] O.J. No. 3961 (Ont. Court of Justice (Gen. Div.)). This is sensible given the purpose served by section 11(b). It is a constitutional assurance that the state will not subject a person charged to "overlong exposure to the vexations and vicissitudes of pending criminal accusation": R. v. Mills, [1986] S.C.J. No. 39, at para. 146. Put more simply, section 11(b) recognizes that individuals who are being prosecuted are presumed to be innocent, and that the prosecution process can have significant adverse impact on the liberty interests and personal well-being of those who are charged. Since an accused person facing a retrial will have experienced the adverse effects of the prosecution from the time the charge was initially laid, that entire period should, in my view, be taken into account. This is particularly so given that accused persons are not ordinarily responsible for the need for a second trial. A second trial becomes necessary because of judicial error, or extenuating circumstances requiring a mistrial at the first hearing. Accused persons should not, in my view, be expected to undergo unacknowledged subjection to the stress and challenges of delay simply because, through no fault of their own, the first trial failed to dispose of the matter.

[6] When the delay arising from each of the two trials is considered in Mr. Fitts' case, the total gross period he has spent under charge, excluding the appeal period, is 44 months. This period encompasses the first trial period from September 28, 2011 to February 1, 2013, a total of 492 days, or approximately 16.5 months, as well as the second trial period commenced on September 18, 2013, which continues to run today, a total of 837 days, or approximately 27.5 months. This overall delay is clearly long enough to warrant inquiry under section 11(b).

[7] It is critical to note at the outset, however, that section 11(b) does not look solely at the length of time that has passed under charge. As indicated, section 11(b) is concerned with state-caused delay. It promises that prosecutions are not to be delayed unreasonably either by the prosecutor or by the failure of government to provide an administration of justice than can resolve cases within a reasonable period: R. v. Morin, [1992] 1 S.C.R. 771.

[8] As a result, section 11(b) responds not to time alone, but to "delay," more specifically, delay that the state bears responsibility for. Time periods inherent in the case or caused by the choices or conduct of accused persons cannot found a constitutional complaint, since time periods inherent in the case are not "delays," and the state is not responsible for time periods of delay caused by accused persons.

[9] The "intake period" is part of the time inherent in a case. It cannot, therefore, be considered unreasonable. An intake period is required to enable retainers to be arranged, disclosure to be accomplished, procedural decisions to be made by accused persons and prosecutors, and bail hearings and pre-trials to be conducted: R. v. Lahiry (2011), 238 C.C.C. (3d) 525 (Ont.S.C.J.), cited with approval, R. v. Tran, 2012 ONCA 18. A judge dealing with a section 11(b) application is therefore required to identify an appropriate intake period, in light of the complexity of the case, including the nature of disclosure requests that are made: R. v. Duszak, 2013 ONCJ 586. That period is to be deducted from the period of potentially unreasonable delay that is to be considered.

[10] The law has also come to reflect the reality that even after the intake period is complete there will be further inherent delay before a trial can realistically begin. This is because the parties will require time to prepare their case, find time in their personal schedules, and comply with necessary notice requirements related to the trial. The period of institutional delay therefore "starts to run when the parties are ready for trial but the system cannot accommodate them": R. v. Morin, supra at para. 47, and see R. v. Lahiry, supra.

[11] The Ontario Court of Appeal therefore said in R. v. Tran, supra at para 32:

"Parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them."

[12] As a result, a judge faced with a section 11(b) application is required to identify when the parties realistically would have been ready for trial given all of the circumstances. It is only after this period has passed that the relevant period of delay can be identified.

[13] Finally, section 11(b) recognizes that not all delay meets constitutional standards of what is unreasonable, even if caused by the state. This is because the law is pragmatic. Some delay is inevitable, given that there are resource limits on the ability of the state to put accused persons on trial. Ultimately, it is in the public interest to tolerate some such delay given the public interest in seeing cases tried on their merits. Those charged with offences, as members of the public, must endure reasonable delay in the interests of justice.

[14] The Charter therefore balks only at overlong delays that have caused prejudice to the interests of accused persons. The concept of prejudice is central:

Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards pretrial 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: R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 at para 30.

[15] Given all of this a section 11(b) inquiry is nuanced:

"Whether a delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s.11(b) seeks to protect": R. v. Godin (2009), 2009 SCC 26, 245 C.C.C.(3d) 271 at para 18 (S.C.C.).

[16] With the information that this directed inquiry provides in hand, "[t]he Court is then to judge whether the delay is unreasonable, and in doing so, to balance the interests of the accused and the societal interests in a trial on the merits": R. v. Williamson, 2014 ONCA 598, [2014] O.J. No. 3828 at para 22 (Ont.C.A.). There is no mathematically fixed period of reasonable delay. What is reasonable varies from case to case, according to regional and case-specific conditions.

[17] Appellate courts do provide general assistance on how much delay will generally be unreasonable. In Ontario a general guideline period of delay of 8-10 months for a trial in provincial court is typically tolerable: R. v. Morin, supra at 799. A simple straightforward case will fall at the lower end of that period. It may be reasonable, however, for more complex multi-day cases to require even longer trial delay because of inherent scheduling difficulties.

[18] Prejudice is a significant enough component of the calculus that "real prejudice can shorten the period of acceptable delay in a proper case." By the same token, the "the absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable": R. v. Seegmiller (2004), 191 C.C.C. (3d) 347 at para 25 (Ont.C.A.).

[19] The period of tolerable delay can also be affected by the seriousness of the case, given that the public interest in adjudicating a case on its merits is higher in more serious prosecutions. It is critical to bear in mind, however, that the seriousness of the case cannot be allowed to overwhelm the constitutional right protected by section 11(b). After all, the protection of section 11(b) is not promised only in the case of minor offences. It applies to all charges: R. v. Williamson, supra at paras 62-68 (Ont.C.A.).

[20] Where a retrial is occurring, as in this case, the usual guidelines for a criminal trial cannot be applied without modification. In R. v. Follows, supra, Justice I.W. Andre commented sensibly at para. 39 that, "the administrative guidelines must be extended upwards where a new trial has been ordered after a successful appeal." Naturally, two or more trials are going to take longer than one.

[21] Given that the inquiry into unreasonable delay is to be context based, however, it would be too simplistic simply to double the ordinary 8 to 10 month guideline for ordinary provincial court trials. This is because retrials tend to require different periods of delay. Intake requirements will generally differ. For example, Crown disclosure will normally have been handled already, and the number and nature of appearances required to set a trial date may be different, depending on local administrative practices. Moreover, the time required to prepare for trial may be abridged, given that trial preparation has already occurred for the first trial. Critically, the Ontario Court of Appeal has accepted that where a retrial has been ordered, the Crown has an obligation to proceed expeditiously: R. v. Yakymiw, [1993] O.J. No. 2631 at para 4 (Ont.C.A.). It is therefore accepted the prosecutors have a higher duty to give priority to proceedings, the longer they have been in the system: R. v. Satkunananthan, [2001] O.J. No. 1019 at para 45 (Ont.C.A.).

[22] Since the new trial will generally take less time to get before the courts than the initial trial, in R. v. Follows, supra, Justice I.W. Andre suggested a guideline of an additional period of delay of 6 to 8 months for the retrial, coupled with the 8 to 10 month guideline for the original trial, for a total guideline of 14 to 18 months. This guideline commends itself as a rough marker, bearing in mind that a court must ultimately determine a reasonable delay based on the particular circumstances of the case.

II. The First Trial

[23] As indicated, the gross post-charge period in the first trial prior to Mr. Fitts' conviction before Justice Levesque, lasted from September 28, 2011 to February 1, 2013, a total of 492 days, or approximately 16.5 months.

a. The Intake Period

[24] The parties agree that the first 5 months of this period, from September 8, 2011 to February 7, 2012, cannot be counted. This unusually long period was spent securing disclosure, and awaiting and conducting pre-trials with a view to possible resolution. The defence, which had requested a number of adjournments during this period, characterizes it as an intake period. The Crown suggests that because the defence initiated what it implied were atypical adjournment requests, some of this delay is defence-caused delay. I need not resolve this dispute in calculating the period of delay since, on either characterization, this 5 months or 150 day period is to be excluded from the total count, reducing the remaining period in controversy for the first trial to 342 days, or approximately 11.5 months.

b. Awaiting the First Trial Date

[25] The next 7 months of the delay encompasses the period between the date on which a trial date was set, February 7, 2012, and the arrival of that set date, September 7, 2012. The parties agree that much of this is delay is institutional. The defence concedes that a couple of these weeks should be deducted because defence counsel was not available for earlier offered dates. This concession is appropriate.

[26] More importantly, though, it is obvious that the parties were not ready to go to trial the day the trial date was set. Ultimately, the defence brought two Charter motions, a non-disclosure motion based on the failure by the Crown to secure historical data relating to the Intoxilyzer machine that had been used, and a Charter motion related to the conduct of the investigation. These motions had to be drafted and planned, and notice had to be served on the Crown before the trial could begin.

[27] Indeed, given the Crown position that the records were third party records, the third party record-holder should have been served with a subpoena duces tecum, and notice. This is because, where an issue arises as to whether the records are third party records, the record-holder is entitled, as a matter of law, to retain and instruct counsel and participate in the dispute over the nature of the records: R. v. Jackson, 2015 ONCA 832, [2015] O.J. No. 6274. I am not going to include the inherent delay that arises in this case from the involvement of the record holder because, on the evidence before me, no third party record-holder appeared at the first trial.

[28] In addition, the fact that the required Charter notices were not delivered until August 7, 2012, does not mean that the defence was not ready to proceed to trial until that date. I have no doubt that defence counsel would have been ready to serve these Charter notices earlier, but delayed service either as a matter of relative priority or for tactical reasons.

[29] Be that as it may, given that the Charter and disclosure motions increased the complexity of the case and carried inherent delay with them, I am attributing a minimal period of inherent delay for preparation time, including preparation, notice and service on the Crown of 4 weeks. This delay must be coupled with 2 weeks to account for the unavailability of defence counsel, referred to above. The period of institutional delay that had occurred on the eve of the first trial was therefore 5.5 months, rather than the 7 months that lapsed.

c. Rescheduling the Trial

[30] The scheduled trial was not reached on September 7, 2012 because courts were preoccupied with other cases. The defence urges that the delay pending a rescheduled trial date of November 8, 2012 of 2 months is attributable to the state because of its inability to accommodate the case on the first set date. On its face this appears to be a fair and correct position. It is a paradigmatic case of institutional delay when the state cannot accommodate a scheduled trial because the trial court has been overbooked.

[31] The Crown urges, however, that it would not be fair to attribute responsibility to the Crown for the delay between this date and the rescheduled court date, in the unusual circumstances of this case. It contends that the defence is solely responsible for causing a three-quarter day hearing to have been set for the trial, and that the period was woefully inadequate to complete the case, making it inevitable that a further court date would have had to have been set, even if the three-quarters of a day had been dedicated to Mr. Fitts' case.

[32] I will begin by expressing unreserved agreement with the proposition that the three-quarter day trial scheduled was far too brief to enable the trial to have been completed, even if it had started. The case, as ultimately conceived by the defence, required the hearing of a Charter disclosure motion, as well as a full two-witness trial, during which another Charter motion relating to the investigation had to be conducted. It is obvious that more than three-quarters of a day was going to be needed for a trial involving two separate Charter motions with two witnesses.

[33] This is particularly so in this case given that one of the Charter motions was a disclosure motion. Even basic disclosure motions are complex, typically requiring difficult legal argument and cautious deliberation by the trial judge. At the time this Charter motion was brought, there was a contest between the parties about whether the records sought were "first-party records" or "third party records." [1] Had the Crown prevailed on that point, the police force holding the record would have had standing to participate in the hearing, potentially protracting the motion itself. Moreover, if the target records did prove to be "likely relevant" the trial judge would have been required by law to inspect them before deciding whether they should be released. If released to the defence, reasonable delay would then have been required to permit the defence to review the record and adjust their trial strategy accordingly. For these reasons, when a disclosure motion is brought in connection with a trial, two separate blocks of time are required, one period to hear the disclosure motion, and the other for the post-disclosure hearing trial, with a necessary period of delay between those dates.

[34] Ordinarily, both parties share responsibility for setting an adequate trial period, since both participate in the estimate. I agree with the Crown, however, that where the time for trial is materially affected by information known only to the defence, such as the intention to bring disclosure and other Charter motions, it is incumbent on the defence to share that information with the Crown before the trial date is set. This is because only the defence knows how it will present its case. I accept that when the Crown in this case agreed to a three-quarter day trial, it expected a simple two-witness prosecution. I also accept that had the Crown known what was in store it would not have agreed to that time estimate. A minimum of two dates, with a necessary interim delay, would likely have been set. Moreover, given that at least a day would have been required for these hearings, under local administrative rules this case would have had to have been further delayed so that it could have been judicially pre-tried before the trial date was even set, adding further delay before trial dates could be selected.

[35] For these reasons, in the unusual circumstances of this case, the two months delay that occurred in waiting for another trial date after the first set trial was not reached cannot fairly be attributed to the Crown. I am therefore attributing this reasonable delay of 2 months in finding another trial date to the defence and to the inherent time limits of the case, as it developed. The period of delay attributable to the state as of November 8, 2012 was therefore still 5.5 months.

[36] In arriving at this position I am not intending in any way to criticize Mr. Fitts for attempting to enjoy his Charter rights. The reality, however, is that Charter applications increase the inherent time requirements of a case. This, coupled with the failure by defence to provide the information needed to make a realistic estimate, ensured that the trial would have to continue beyond the set date, for a period I would estimate at two months.

[37] In coming to this conclusion I am not ignoring the fact that, because of an institutional shortage of resources, three-quarters of a day set for trial was lost. This had a ripple effect. As a result, the parties were setting a new trial date for a trial that had not started, rather than a continuation date for a trial that was underway, with evidence already heard. The impact of the lost trial time showed itself when the new trial date arrived, and it is therefore in the context of the next period of gross delay that it will be considered.

d. The Conduct of the First Trial

[38] When the second trial date was chosen, being November 8, 2012, once again a single day was selected, in spite of the disclosure motion that by this point both parties knew was in the offing. The trial commenced on that date with the disclosure motion, which was summarily dismissed after a half of day of trial time. The trial proper then began but the matter was not completed. Fortunately, Justice Levesque was scheduled to be in Ottawa to preside on November 19, 2012, and as luck would have it both counsel were available.

[39] The trial continued on November 19, 2012, and evidence was completed. There was insufficient time for arguments that day, but again, fortunately, both counsel and the judge were available on short notice and so argument was scheduled for November 30, 2012. Those arguments were completed that day. The matter was then remanded to January 10, 2013 for decision, after defence counsel requested that the matter be put over until after Mr. Fitts' examination period.

[40] The parties agreed during oral submissions before me that the period of delay in completing the trial after it began was neutral. I agree that the trial time itself, and the period of delay requested by Mr. Fitts, cannot be attributed to the Crown, but I do not find this entire period to be neutral.

[41] As indicated, three-quarters of a day of trial was lost on September 7, 2012, as a result of insufficient resources. Had that time been used, it would not have been necessary to have three further appearances to complete the Crown case and the blended Charter voir dire. Indeed, based on the time this part of the case actually took to complete – half a day on November 8, 2012, a full day on November 19, 2012, and a few hours on November 30, 2012 - the matter could have been completed in one further day had the scheduled three quarters of a day been utilized. The delay caused waiting for further dates between November 8, 2012 and November 30, 2012, would not have been needed. This period of 22 days or 3 weeks is therefore attributable to the Crown.

[42] The delay during the exam period that followed while the final decision was being prepared for release was an inherent time requirement of the case.

e. The Period of Relevant Delay from the First Trial

[43] I therefore find that the total delay tenable in a section 11(b) application arising from the first trial is 6.25 months, consisting of the 5.5 months already described, plus the 3 weeks needed to allow for the time lost because the initial trial date was not used.

III. The Second Trial

[44] The appeal of Mr. Fitts' first trial conviction was released on September 18, 2013, restarting the delay clock. The gross period of delay to be examined for attribution is from that date until today's date, a period of 837 days, or 27.5 months. It is this period of delay that the defence has targeted most aggressively in this delay application, contending that by permitting the case to take this long to complete, the Crown has clearly not discharged its obligation to expedite the case.

[45] This case took a number of steps to get where it is today. In evaluating the defence contention that the period of delay is unreasonable, I will consider each in turn. I will not shadow the periods suggested by either counsel, but will look instead at (1) the intake period; (2) the period from intake to trial, (3) the completion of the trial including the "lost evidence motion," and (4) the section 11(b) application.

a. The Intake Period

[46] It took from September 18, 2013 when a new trial was ordered by the Summary Conviction Appeal Court, until December 10, 2013, for dates to be set for the disclosure motion and trial.

[47] During this period, the case was remitted from the Ontario Superior Court of Justice to the Ontario Court of Justice, where a judicial pretrial had to be arranged as the trial would take more than a day.

[48] The parties also came to appreciate that a separate date should be set in advance of the evidence phase of the trial to permit the disclosure application to be heard and decided.

[49] During this period, the defence initiated a number of adjournment requests to confirm whether a judicial pretrial would be needed, to see if dates for the judicial pretrial could be made available, and to conduct resolution discussions that were held, but failed.

[50] Mr. Auger, for Mr. Fitts, contends that this period of delay of some 2.75 months arises from institutional delay and therefore counts in accumulating unreasonable delay. The Crown identifies it as an "intake period/inherent requirements of the case."

[51] I agree with the Crown. Without question, with the exception of the resolution discussion delay between November 26, 2013 and December 10, 2013, this period was occupied with ordinary procedures required to get a trial, even a retrial, of more than one day scheduled. That intake period, including defence-requested postponements, is a neutral period. The period during which resolution discussions were undertaken was utilized on consent, and must also be treated as an inherent requirement of the case.

[52] The 2.75 month period is not a period of Crown delay tenable under a section 11(b) application. This brings the gross period of delay for the second trial down to 24.75 months.

b. From Intake to Trial

[53] On December 10, 2013, trial dates of September 11 and 12, 2014 were assigned for a two day trial, along with a 2 hour time slot for the disclosure motion on June 26, 2014.

[54] On June 6, 2014, just a few weeks before the disclosure motion date, the parties appeared in COR court to ensure that everything was ready for trial. At that time the COR court judge was alerted that the defence was taking a different tactical approach at the disclosure motion, and that they intended to call an expert witness at the motion itself. Instead of the 2 hour motion that had been initially scheduled, a one and one-half day motion would be required. The court offered dates of July 10th and 11th, 2014 for the motion. The Crown was ready to reassign the case to an available prosecutor to utilize those dates, but Mr. Auger declined because of holiday considerations. The motion dates of July 31 and August 1 2014 were set, and the disclosure motion commenced on July 31, 2014.

[55] Technically, the trial begins with the disclosure motion. I will therefore consider the period from December 10, 2013 to July 31, 2014, the first day of the disclosure motion, as the period between the end of the intake period and the arrival of the trial date. This is a period of gross delay of 7 months and 21 days. Mr. Auger, for Mr. Fitts, considers this to be a period of institutional delay. Mr. Boyce, for the Crown, agrees that much of it is. I agree that some of this delay is institutional, but that period of delay is shorter, in my view, than even the Crown conceives.

[56] First, Mr. Auger declined the date of July 10, 2014, which the Crown was prepared to accommodate. This delayed matters 21 days. The gross delay after the intake period pending the commencement of the first trial, in light of this, is therefore 7 months.

[57] Not all of this remaining delay 7 month period qualifies as institutional delay. Even though a trial had already been conducted, the parties were not ready for the disclosure motion phase of the trial that had been set to begin on December 10, 2013.

[58] This is, in part, because a party is not required to present their case in the same way during a retrial. As a result, the parties are required under the Criminal Rules of the Ontario Court of Justice to provide 30 days of notice in advance of trial, of any Charter motions, regardless of whether the matter is a retrial. Given that service of this motion did not occur during the intake period, the trial could not have gotten underway until this month long delay had passed.

[59] More importantly, the case had become more complex. First, the defence, appreciating the importance of expert evidence given the nature of the disclosure issue, ultimately decided to call an expert witness. This decision carried with it additional delay. An expert who will be available on the trial date must be found and retained, and given time to prepare the report. After sufficient work has been done by the expert to enable a section 657.3 Criminal Code affidavit to be prepared, once prepared it must be served by the defence, at least 30 days before the hearing. Moreover, this invariably changes the nature of the hearing, as it did here. The Crown, not surprisingly, chose to retain and instruct an expert of its own after it learned of the change in strategy. The time needed to accomplish these tasks is neutral preparation time inherent in the case.

[60] Second, at some point somene came to be appreciated that the record-holder, the Ontario Provincial Police, as a putative third party record holder, should have been invited to participate in the litigation. I am not sure how this came about, but, as indicated, where an issue arises as to whether a record is first-party or third-party disclosure, the party should bring the application as a combined Stinchcombe - O'Connor application, subpoena the relevant records and give at least 30 days of notice to the putative third party, who is then entitled to retain and instruct counsel. They are also entitled to notice that an expert witness is being called.

[61] A number of these steps can, of course, be undertaken simultaneously. Realistically, however, to reconceive of the motion, revise the notice documents and serve them, retain and instruct an expert, secure enough information to complete the section 657.3 notice, and then serve it on both the Crown and the putative third party, while respecting the relevant notice periods, would take a diligent, organized lawyer giving the matter fair priority in their rack of ongoing commitments, at least 3 months to accomplish. Even this would mark laudable efficiency.

[62] I therefore calculate the institutional delay from the time the intake period until the commencement of Mr. Fitts' second trial as 4 months., the 7 months identified above minus the 3 months of preparation time.

c. Completing the Trial; From the Disclosure Motion to the completion of the Lost Evidence Motion

[63] The disclosure motion commenced, as scheduled, on July 31, 2014, and continued on August 1, 2014. That motion could not be finished in the time scheduled. Crown expert Dr. Mayer could not even begin his testimony.

[64] It was agreed by the parties that the originally scheduled dates for the evidentiary phase of the trial of September 11 and 12, 2014 would be used to continue the disclosure motion. This occurred because, once it became evident that the disclosure motion would not conclude in the two days that had been set for it, it was not realistic to secure earlier dates for continuation of the disclosure motion that would accommodate all of the parties. As a result the dates originally set for the evidentiary phase of the trial were reserved.

[65] On September 11, 2014 Mr. Auger attended court and abandoned the Charter motion. He indicated that he intended to bring a "lost evidence" motion instead. This decision was made because, during the course of the disclosure motion, it became apparent that much of the material that the defence had been seeking was either never in the possession of the target police force, or had become "lost" as the result of the erasure of computer records stored in the relevant Intoxilyzer machine.

[66] Even though no lost evidence motion had yet been filed, the parties agreed that the evidence of Dr. Mayer would be heard on that motion to be considered along with relevant evidence arising from the now abandoned disclosure motion. Dr. Mayer's testimony was heard and completed in one day. As a result, the date of September 12, 2014 was lost.

[67] At the end of the court date, September 11, 2014, the parties undertook to secure dates for the trial, appreciating that, as a matter of law, a lost evidence motion seeking a stay of proceedings is to be adjudicated only after the evidentiary case on the merits of the prosecution has been presented. This is done so that the impact of the loss of the evidence can be adjudicated in context. The dates of January 6 and 7, 2015, were obtained and communicated to the Court on September 16, 2015.

[68] On January 6 and 7, 2015, the evidentiary phase of the trial was completed by way of blended voir dire, addressing simultaneously the trial and the Charter motion alleging investigative breaches.

[69] During the course of this hearing, an application for adjournment by the defence to retain an expert to testify about the impact of the failure properly to maintain the Intoxilyzer 8000C was denied.

[70] The matter was then adjourned until January 14, 2015, so that the Court could prepare a judgment on the Charter motion. On January 14, 2015, reasons for decision were given denying the Charter motion that had complained about alleged investigative breaches.

[71] After the decision was rendered, the parties immediately attended with the Court Co-ordinator to find a continuation date to argue the lost evidence motion, securing the date of March 11, 2014. That date was cannibalized from a 3 day trial that had already been scheduled to proceed and end on March 11, 2015.

[72] On March 11, 2015 argument was heard on the lost evidence motion. It took the entire court day. The matter was then put over to May 13, 2015 for decision, after a date of May 8, 2015 was declined by the defence, for personal reasons. On May 13, 2015 the lost evidence motion was denied.

[73] The gross delay from the commencement of the trial with the first day of the disclosure motion on July 31, 2014, to the completion of the "lost evidence" motion with the decision of May 13, 2015, is 9 months and 13 days, roughly 9.5 months. How should that delay be attributed?

[74] Not all of this period can be attributed to institutional delay. As indicated, it is inherent in a case involving a Charter disclosure motion that there will be a 60 day adjournment between the date the motion is heard and the commencement of the evidentiary phase of the trial mandated under Rule 2.4 of the Criminal Rules of the Ontario Court of Justice.

[75] I appreciate that, given the ultimate abandonment of the disclosure motion, the 60 day delay provided for in the Criminal Rules of the Ontario Court of Justice proved not to have been necessary. The parties had, however, scheduled the case in a bifurcated fashion to comply with Rule 2.4 at a time when a disclosure motion was being advanced. Had this not been required by the motions then being undertaken, the evidentiary phase of the trial would have been commenced to start earlier than September 11, 2014, probably on July 31, 2014. Unquestionably the bifurcated schedule that was set constituted part of the inherent time requirements of the case, as it progressed. The gap between dates that occurred to accommodate the disclosure motion is therefore neutral.

[76] As things materialized, less than 60 days of delay was actually provided for this deliberation and preparation period. This is because just a couple of weeks before the initially set disclosure motion date of June 26, 2014, Mr. Fitts' counsel made the belated tactical decision to change the defence strategy. This resulted in the need to abandon the scheduled time in June, and replace it with the July 31 and August 1, 2014 motion dates. The gap between these dates and the date set to begin the evidential phase of the trial, September 11, 2014, was therefore less than the sixty days provided for in the rules, only 44 days. This 44 day pause, plus the sitting day on September 11, 2014, 45 days in total, must therefore be treated as neutral and unavailable to be counted as unreasonable delay. [2]

[77] In light of this, the gross delay between the commencement of the disclosure motion and the conclusion of the trial potentially available for section 11(b) consideration falls to 8 months, being the 9.5 months of potential delay identified above, minus the 45 days.

[78] There are yet other time periods after September 11, 2014, that must also be removed from the unreasonable delay calculation, since they are neither Crown delay nor institutional delay.

[79] First, when the disclosure motion was abandoned on September 11, 2014, it was not possible to set continuation dates for the trial, given the time of day. It was not until September 16, 2015, that the matter could be remanded before me to January 6 and 7, 2015. That sitting day, September 16, 2015, and the 5 day intake delay required to set that date, are therefore neutral. They do count against the Crown. Similarly, the 2 days of trial on January 6 and 7, 2015, are inherent in the conduct of the case. Together these 7 days, reduce the gross delay remaining to approximately 7 months, 3 weeks, or 7.75 months.

[80] Then there is time inherent in the administration of the "lost evidence stay application." The one week period waiting for that decision, until January 14, 2015, is inherent in the case in light of the motion that was brought. It cannot count against the Crown. This reduces the overall delay to 7.5 months.

[81] Finally, the day dedicated to that lost evidence motion, March 11, 2015, is time inherent in the case, and so too is the time required to consider and prepare what proved to be a complex decision. A date for decision of May 8, 2015 was offered but declined, for personal reasons, by the defence. Ultimately a date of May 13, 2015 was arrived at, and the decision was rendered on that date. The period from March 11, 2015 to May 8, 2015 inclusive, consisting of deliberation time and a modest delay requested by the defence, does not count against the state. Close to 2 months must therefore be removed from the unreasonable delay calculation. This reduces the period of delay from the onset of the disclosure motion to the end of the trial to 5.5 months.

d. The Section 11(b) Motion Period

[82] Shortly before the lost evidence decision was rendered, Mr. Auger served notice on behalf of Mr. Fitts that he would be bringing this section 11(b) application. Mr. Auger explained that the motion had not been brought earlier as Mr. Fitts did not want to undergo the costs of preparing for a section 11(b) motion unnecessarily. If my decision on his "lost evidence" stay of proceedings motion was favourable, the 11(b) unreasonable delay motion would become moot. At some point in April or early May 2015, a notice of motion under section 11(b) was filed, returnable on the date of the lost evidence decision, May 13, 2015, in case it was needed.

[83] There was never any expectation on the part of the defence that the section 11(b) motion would actually be heard on its return date of May 13, 2015. As I will explain, the section 11(b) motion was not ready for argument. As a result, when I rejected the lost evidence motion, that day, the earliest available date to hear the section 11(b) motion was set, being November 16, 2015.

[84] On that date, November 16, 2015, argument on the section 11(b) motion was completed, and I reserved decision, setting today's date for its release.

[85] The total facial delay during the section 11(b) period – from May 13, 2015 to today's date of December 23, 2015 - is therefore 7 months, 10 days, a little over 7.25 months.

[86] Mr. Auger, for Mr. Fitts, urges that 6 months of this delay, the period between May 13, 2015 and the date the motion was heard, November 16, 2015, should be assigned to the Crown. Mr. Boyce, for the Crown, argues that none of this period should count. Mr. Fitts made a tactical decision not to bring the application until the end of the case. Even if there are pragmatic considerations related to cost that drove this decision, the fact remains that the motion could and should have been brought at trial, but Mr. Fitts chose to delay it. Notice could have been given, for example, when the lost evidence motion dates were being set and the two motions could have been heard together.

[87] I agree with Mr. Boyce. There is something unsettling about the proposition that the defence can wait for the entire period of trial delay to end, and then bring a section 11(b) application, which will necessarily take time to dispose of, and then have that additional section 11(b) time added to the trial delay. Ironically, if the tactical decision of an accused person to delay a section 11(b) application until the end of a trial does not rest at his feet, it would encourage delay in delay applications, and, indeed, invite manipulative motions. Section 11(b) is to be used to reduce the "vexations and vicissitudes of pending criminal accusation." To indulge the submission before me would encourage procedures that prolong stress and extend the delay before finality, with all that this entails. In my view the delay caused by the section 11(b) motion is attributable to Mr. Fitts.

[88] Even if I had not been convinced that delay in bringing the section 11(b) motion itself prevents the time spent on the section 11(b) application from being visited upon the state, the attempt by the defence to count the entire period from May 13, 2015 until the motion was heard on November 16, 2015, is extravagant.

[89] As indicated, this motion was not ready to be heard on its return date of May 19, 2015. These applications are complex and cannot be prepared on short notice. Transcripts of all appearances need to be ordered and organized. On May 19, 2015 only a small percentage of the Application Record had then been filed. Indeed, the Applicant's factum and record were not even ready until November 10, 2015, only six days before the motion. I understand that the final part of the delay in filing the document occurred because I was unavailable to sign the final transcript, permitting its release. This episode demonstrates that such motions inherently take time. It is inaccurate, in the circumstances, to contend that Mr. Fitts was ready to go with the motion from May 19, 2015, but the system could not accommodate him.

[90] In the end, because of the tactical choice by Mr. Fitts to delay bringing the motion, no delay will be attributed to the section 11(b) application.

e. The Delay in the Second Trial

[91] The overall delay in the second trail that is attributable to the Crown, including institutional delay, is therefore 9.5 months, 4 months from the Intake period until the trial commenced, and 5.5 months from the disclosure motion until today.

IV. Is the Overall Delay Unreasonable?

[92] The overall delay attributable to the Crown, during which Mr. Fitts was ready to proceed but could not do so, is therefore 15.75 months, 6.25 months for the first trial, and 9.5 months of delay for the retrial. While the retrial took longer than the 6-8 month guideline, the first trial involved less state-caused delay than the 8-10 month guideline. In total, Mr. Fitts overall delay falls in the middle of the 14-18 months range of permissible Crown caused and institutional delay for a retrial.

[93] As explained at the outset of this decision, however, these periods are just guidelines, and nothing more. I need to balance the competing considerations to determine whether the delay is unreasonable.

[94] In undertaking this necessary balancing I have already identified the overall length of the delay, the periods attributable to the defence, and the reasons for the delay, leading to the 15.75 months of delay I have just described. What then, of the other factors?

[95] I will look first at the Crown's compliance with its obligation to give the retrial priority.

[96] In my view, the Crown took some impressive steps to achieve this. It was prepared to reassign the case to secure timely dates for the argument of the disclosure motion. Moreover, the prosecuting Crown agreed to permit Dr. Mayer to testify in the lost evidence motion, before a motion was even filed, so as not to waste the September 11, 2014 court date. The Crown did not have to do this.

[97] I am concerned, however, that even with this, the retrial involved 9.5 months of state caused delay, a period fitting for a first trial, but longer than appropriate for a retrial. In my view, there has not been sufficient priority given when retrial dates are being set to the institutional obligation that both the Crown and the Court itself share, to accelerate scheduling. Retrials should be treated as analogous to in-custody cases, demanding priority rather than relegation to familiar periods of delay for a first trial.

[98] Of importance, however, Mr. Fitts' case was not conducted in a way that reflects due diligence in ensuring that the case would be dealt with promptly. To be sure, the Court record is salted with defence requests for early dates, and counsel did attempt unrealistically to consolidate two disclosure motions in two separate cases to save court time and client resources, but due diligence requires more than papering the file.

[99] First, the intake periods for both trials swelled to unusual length, typically because of defence requests to put the matter over to complete tasks, some of which do not strike me as either compelling or undertaken with dispatch. There is no convincing indication at these stages of any sense of urgency.

[100] More importantly, a woefully inadequate trial estimate was offered when the initial date was set for the first trial, because the defence had not developed or disclosed its trial needs arising from Charter motions until after that trial date had been set. It then did nothing to revise that estimate. This contributed to the delay.

[101] Even the way the defence scheduled the disclosure motion at the first trial ensured that unnecessary delay would occur, had that motion succeeded. Mr. Fitts could not reasonably have expected a court to dispose of that motion favourably, and to have conducted the trial the same day. An adjournment would have been required, even in the unlikely event the judge could render an immediate disclosure decision, so that the parties could prepare their case in light of the disclosure ruling. Bifurcated dates should have been set to accommodate this.

[102] In making this point, I am mindful that the Criminal Rules of the Ontario Court of Justice were not in force when the trial dates were initially set, but even the early disclosure cases in the Supreme Court of Canada at the time, including R. v. O'Connor, [1995] 4 S.C.R. 411, and R. v. Mills, [1999] 2 S.C.R. 668, counsel lawyers to seek an early appointment of the trial judge so that disclosure applications can be heard separately from, and in advance of the evidentiary phase of trial, precisely to avoid delay. Counsel intent on moving the case along would have sought a bifurcated schedule, even before the new rules made this an explicit requirement.

[103] Moreover, during the second trial the defence estimated that its disclosure motion would take two hours, but then announced in COR court less than 3 weeks before that scheduled 2 hour hearing that it would be calling expert evidence at the disclosure hearing. [3] This last-minute change in strategy put the Court in a position of having to scramble to try to save the trial dates by agreeing to a disclosure hearing that was less than the rules then in force required.

[104] More importantly, the gap between the motion and the trial was short enough that, if the disclosure application was completed, it could well have put the evidential trial dates at risk. That application was complex. It is unlikely that, within the 44 days remaining, a decision would have been rendered, records potentially inspected, and documents disclosed in time for the trial to go ahead.

[105] Even leaving this aside, the belated strategy change may have actually put the trial dates at risk in this case, by cramming the motion dates so close to the trial dates that there was no realistic prospect left that a continuation date could be secured in time to complete the motion before trial if, as happened, that motion was not completed.

[106] I am not finding that the trial dates could have been saved had the true nature of the motion been made clear in a timely matter. The point is that the conduct of the defence itself imperilled the prompt resolution of the charge.

[107] The general lack of urgency I have identified was also on display in the late decision to abandon the disclosure application and bring a lost evidence motion. That change was announced in court on September 11, 2014, the day set for continuation of the disclosure motion, even though the defence had been aware as of August 1, 2014, that that the key evidence it sought no longer existed. Had this decision been made promptly, it may have been possible to hear Dr. Mayer on September 11, 2014, and arrange for the commencement of the evidentiary phase of the trial on September 12, 2014, the next day.

[108] Lack of diligence in moving things along promptly is further evidenced by the request made by the defence on January 7, 2014 to adjourn the trial so that an expert witness could be retained to address an issue the defence had been aware of since the disclosure motion.

[109] Then there is the last minute section 11(b) application. The lateness of that application casts doubt upon the priority Mr. Fitts gave to the trial rights he now complains about.

[110] I understand that busy lawyers are harried, and there are multiple pragmatic factors that can contribute to delay. I also appreciate that busy lawyers will focus on immediately pending cases and that they often discover steps that need to be taken when they prepare a file more intensely as a trial date nears. Still, whether all or any of the dilatory conduct in the defence of Mr. Fitts is understandable, it is difficult to build a credible complaint about unreasonable trial delay, pointed at the Crown, on a record such as this.

[111] It is in this context that I must assess the prejudice to Mr. Fitts, mindful that prejudice can influence the operation of the guideline periods.

[112] Mr. Fitts did not lead any evidence of specific prejudice the delay has caused him. There is no evidence before me of any restriction on his liberty arising from his conditions of release. Nor is there any indication of loss of employment opportunities caused by delay.

[113] I have no evidence that Mr. Fitts ability to secure a fair trial was undermined by delay.

[114] Mr. Fitts relies entirely upon inferred prejudice inherent in the delay.

[115] If the approach used in R. v. Lahiry, supra is taken and inferred prejudice is calculated based only on the Crown and institutional delay, Mr. Fitts has not suffered any more prejudice than was inevitable. This is because his combined trials have entailed the kind of state-caused delay that is considered tolerable, and therefore to be expected.

[116] If the entire period of delay is considered, a strong foundation is set for the claim that Mr. Fitts has long-experienced "the stress and cloud of suspicion that accompanies a criminal charge." I have every expectation that because of his charge and the unusual number of court appearances he has experienced, that these past four years have been made materially more difficult for Mr. Fitts than they otherwise would have been.

[117] Still, the inference of the extent of prejudice that Mr. Fitts has experienced is tinctured or weakened by the lassitude the defence has displayed in moving the case along, including and especially the late filing of this section 11(b) application. The fact that an applicant who was about to receive a verdict would bring such an application, knowing that it would necessarily and inherently require additional delay, is some indication that they are not suffering significantly from the adverse effects of delay since they are prepared to prolong things in the hope of securing a decision that will avoid a verdict on its merits.

[118] When I consider all of the factors, including the overall length of the delay both at the first and second trial, individually and together; the reasons for that delay; the imperfect efforts taken by the Crown to ensure a prompt retrial in light of the failure by the defence to act with commendable urgency in securing its right to trial within a reasonable time; the modest prejudice from delay I can glean on this record, and the public interest in having this case decided on its merits, I cannot find the delay that Mr. Fitts experienced to have been unreasonable. The long delay that occurred is unfortunate, indeed no doubt exhausting, but it has not been unreasonable.

V. Conclusion

[119] Mr. Fitts' section 11(b) motion is denied.

Dated in Ottawa this 23rd day of December, 2015

Justice David M. Paciocco Ontario Court of Justice

Footnotes

[1] It has since been settled in Ontario that such motions are indeed "third party records" applications: R. v. Jackson, supra.

[2] In argument, both parties agreed that since Mr. Auger was unavailable for trial dates offered on August 21 and 22, 2014, resulting in the September 11 and 12, 2014 dates being set, this 3 week period should count against the defence. I need not factor this in, since the period of Mr. Auger's unavailability overlaps with the 45 day delay that I have just excluded from consideration in support of the motion.

[3] On a lesser note, that did not even leave time for the defence to comply with section 657.3.