Court File and Parties

Ontario Court of Justice

Date: October 13, 2016

Court File No.: Brampton 15-6109

Between:

Her Majesty the Queen

— and —

Michael Hart

Before: Justice Alison R. Mackay

Heard on: August 29, 2016

Ruling on s. 11(b) Charter Application, released on: October 13, 2016

Counsel:

Natasha Engineer — counsel for the Crown

Jonathan Rosenthal and Frank Addario — counsel/agent for the defendant Hart

MACKAY J.:

1.0: INTRODUCTION

[1] On May 18, 2015 the Applicant, Michael Hart, was charged with two drunk driving offences. His trial is scheduled for October 24, 25, and 26, 2016.

[2] By the time the matter comes to trial, 17 months and 8 days will have passed. Mr. Hart has brought an application requesting a stay of proceedings against him on the grounds that his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter had been breached. Most of the delay preceded the July 8, 2016 release of R. v. Jordan, 2016 SCC 27. The application was heard by me on August 29, 2016.

2.0: HISTORY OF PROCEEDINGS

[3] The following is a summary of the history of the matter:

2.1: Laying of the Information to the First Appearance (May 21, 2015 to May 29, 2015)

[4] The Information was laid on May 21, 2015. Mr. Hart's first appearance was May 29, 2015 being 8 days or ¼ month later.

2.2: First Appearance to Setting the Trial (July 29, 2015 to January 19, 2016)

[5] On May 26, 2015, three days before Mr. Hart's first appearance, Mr. Rosenthal counsel for Mr. Hart wrote to the Crown requesting full disclosure including a copy of the booking video and cell videos.

[6] The first appearance was May 29, 2015 at which time an agent for counsel attended and received initial disclosure. He was advised that the booking video was not part of first party disclosure and was advised to write for the further disclosure. The matter was adjourned to June 26 to obtain further disclosure. The agent had initially asked for June 19th and the court suggested June 26th.

[7] On June 19, 2015 Mr. Rosenthal wrote to the Crown and indicated that he required a copy of the cell video. He did not request at this time the breath room video.

[8] On June 22, 2015, the Crown sent a request to the police for the DVDs relating to the booking, cells, and release cameras.

[9] The second appearance was on June 26, 2015. Counsel's agent received the breath room DVD, which had not been requested in Mr. Rosenthal's letter. The agent stated that counsel was still awaiting the cell DVD. The Assistant Crown told the court that counsel will need to request this disclosure in writing and indicated it "will take a bit of time to get it." The matter was adjourned to July 31, 2015 at the request of the agent.

[10] On July 14 defence counsel sent a letter to the Crown indicating that he had still not received a copy of the cell DVD.

[11] The third appearance was on July 31, 2015. At that time, an agent for counsel was provided a DVD which the Assistant Crown believed was the cell DVD but which was in fact a CD of the 911 audio. The matter was adjourned to August 21, 2015 at the agent's request.

[12] The fourth appearance was August 21, 2015 at which time the agent for defence counsel advised the court that they still had not received the DVD of the Applicant in the cell area. The Assistant Crown advised counsel that the outstanding item should not holdup the matter from moving to at least a Crown pre-trial. The matter was adjourned to September 11, 2015 at the agent's request. The Assistant Crown, Ms. Vlacic confirmed that "it's just the booking video?" and the agent mistakenly confirmed this was the outstanding disclosure. Ms. Vlacic indicated that she will put a note on the file.

[13] On August 21, 2015 Ms. Vlacic made the following request to the Peel Police: "booking video needed to be disclosed asap- send to 11 D Crown after court." The booking video is also referred to as the "holding cell video." The "holding cell" video does not include the cell video. As a result of this miscommunication between the agent and Ms. Vlacic efforts were made by the Crown to produce the "booking video" and not the "cell video." This miscommunication was not sorted out for a few months. A telephone call (pre-trial) between counsel and an assigned Crown would have avoided the mistake. If the pre-trial Crown or police did not act on the disclosure request then a judge at a judicial pre-trial certainly would be able to order or guide the parties that disclosure be forthcoming.

[14] On September 10, 2015, the applicant's counsel sent another letter to the Crown requesting the cell DVD. That same day, Assistant Crown Attorney Paul Renwick sent a fax to Mr. Rosenthal indicating that the "holding facility DVD" will be available in court the following day.

[15] The fifth appearance was on September 11, 2015, at which time the agent for counsel told the court that they are still waiting for DVD disclosure, including a cell video. The Assistant Crown provided the agent with a CD in court and the matter was adjourned to October 2, 2015 at the request of the agent.

[16] On September 21, 2015 Mr. Rosenthal communicated with the Crown Attorney to advise that the second DVD contained video footage of the sally port and telephone areas but not the cells as requested earlier.

[17] The sixth appearance was October 2, 2015. The agent for counsel told the court that they still have not received the cell DVD. Counsel's agent incorrectly stated that the DVD did not work. The Assistant Crown advised the agent that counsel should be in a position to set a trial date without the DVD. Counsel's agent, Mr. Favrin, stated that counsel wished to see the DVD before moving the case forward. The matter was adjourned to October 16, 2015 at the request of the agent.

[18] On October 7, 2015 Mr. Rosenthal wrote again for disclosure of the cell videos. He stated that the cell DVD has not been provided on three prior occasion, adding that the lack of disclosure was preventing the matter from moving forward.

[19] The seventh appearance was October 16, 2015. Mr. Favrin, agent for counsel, said that they are still awaiting disclosure of the DVD of the cell area. Mr. Favrin provided the court with the four dates when this disclosure has been requested. Crown counsel acknowledged that the request was received and that the DVD has been ordered. The matter is adjourned to November 6, 2015 at the agent's request.

[20] The eighth appearance was November 6, 2015. At that time, the agent for counsel was given a copy of the cell area DVD. Crown counsel, Ms. Engineer, pointed out that counsel could have attended and had a pre-trial at court as a Crown is available each day outside the courtroom. The matter was adjourned to November 27, 2015, three weeks hence at the request of the agent.

[21] The ninth appearance was November 27, 2015. At that time agent for counsel told the court that a Crown pre-trial has been scheduled for December 9, and the matter was adjourned to December 11, 2015.

[22] December 11, 2015 was the tenth appearance. The agent for Mr. Rosenthal advised the court that the meeting with Crown Counsel was conducted and that a judicial pre-trial was set for January 19, 2016.

[23] On January 19, 2016 the judicial pre-trial was held after which a three-day trial was fixed.

[24] The time between the first appearance and the setting of the trial was 174 days or 5¾ months.

2.3: Setting the Trial Dates to the Last Trial Date (January 19, 2016 to October 26, 2016)

[25] On January 19, 2016 a trial was scheduled for October 24, 25 and 26. The time between setting the trial and the last of the scheduled three days was 281 days or 9¼ months.

2.4: Total time this case has been in the system (May 21, 2015 to October 26, 2015)

[26] The time between the laying of the Information and the final trial date is 524 days or 17¼ months.

3.0: ANALYSIS

[27] R. v. Jordan, 2016 SCC 27, revamped the framework for the 11(b) analysis and has set a ceiling beyond which delay is presumptively unreasonable. For matters proceeding in the Ontario court, the ceiling is 18 months from the charge to the actual or anticipated end of trial (Jordan, at para. 47 to 49).

If the time to trial is less than 18 months, in order to establish a breach of 11(b) the onus is on the defence to show that they have taken "meaningful steps that demonstrate a sustained effort to expedite the case" and secondly, that the case took "markedly longer than it reasonably should have." (Jordan at para. 82).

[28] The former framework which included an assessment of inherent or neutral delay has been eliminated along with the assessment of prejudice. Both of these factors have been taken into account in the "presumptive ceiling." (Jordan, at paras. 53-54).

[29] Compelling case-specific factors remain relevant to the assessment of the reasonableness of the delay both above and below the presumptive ceiling (Jordan, at para. 51).

[30] The SCC has instructed judges to apply the framework contextually and flexibly for cases currently in the system (Jordan, at para 94).

3.1: Calculating Net delay

[31] As a first step, total delay must be calculated, and defence delay must be deducted. "The defence should not be allowed to benefit from its own delay-causing conduct." (Jordan, at para. 60). In this case, the total delay is 17¼ months.

[32] Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence conduct, defence actions legitimately taken to respond to the charges do not constitute defence delay. (Jordan, at paras. 61, 62, and 65).

[33] For cases, such as this one, that do not exceed the 18 month ceiling, that were in the system at the time Jordan was released, there will be no requirement for the defence to show meaningful and sustained efforts to expedite the case, as this formed no part of their obligation prior to the decision in Jordan. However, the action or inaction by the accused is to be considered when assessing whether the delay markedly exceeded what is reasonable (Jordan, at para. 99).

3.2: Defence Delay

[34] Mr. Rosenthal chose not to schedule a Crown pre-trial or a judicial pre-trial until he received a copy of the cell video. The cell video can prove to be a very important piece of disclosure with respect to allegations of certain Charter breaches. In the case of Malik [2014] O.J. No. 355 a guilty plea was set aside as counsel failed to look at the cell DVD prior to advising his client to plead guilty. In the case at bar, Mr. Rosenthal filed a Notice of Application alleging a number of Charter breaches which included "The Applicant was unlawfully detained overnight." The only allegations I have heard in this case are that the defendant's blood alcohol concentration was more than double the legal limit and that he was charged with both impaired driving and driving with excess blood alcohol.

[35] While it is expected and reasonable that counsel will review all Crown disclosure before advising a defendant to plead guilty, full disclosure is not required to conduct a Crown pre-trial.

[36] Had defence counsel booked a pre-trial or a judicial pre-trial the defendant would have shown a clear desire to have the trial dealt with in a timely manner. In addition, Mr. Hart would more likely than not have had a speedier trial date had a timely crown meeting or JPT been held at an earlier opportunity.

[37] The bulk of the disclosure was received by June 26, 2015. The Crown was prepared and available to conduct a pre-trial or a judicial pre-trial from that date and onwards when the breath room DVD was provided in court.

[38] Crown pre-trials can be had in this jurisdiction either in person on the day the matter is in court or by a scheduled phone call. If counsel had a phone call with a Crown, further steps may have been taken to ensure the cells DVD was obtained, in addition a rough estimate of trial could have been discussed. Having a Crown pre-trial may well have sorted out the obvious confusion and had it not, the defence would then have been in a position to set a JPT without delay. This would have probably resulted in an order from the court expediting disclosure and possibly a target date for trial. Instead, a Crown pre-trial was not conducted until six months after the first set date.

[39] The notion of defence acting reasonably with respect to setting trial dates is not a new concept. Under the Morin, [1992] 1 S.C.R. 771 framework, courts infrequently found institutional or Crown delay where the defence refused to set trial dates while waiting for items of disclosure. This is particularly so where the bulk of disclosure has already been received as in the case before me. Action or inaction of defence was looked at to determine whether a defendant desired a timely trial (Morin, page 802).

[40] Courts have consistently encouraged counsel to set target dates even though more disclosure is anticipated.

[41] In Kaczmarczyk, [2005] O.J.No. 2138 (SCJ) at para. 12, Dyson J. wrote:

I find there was no reason the defence could not set the initial Provincial court pretrial months before it was finally set. Pretrials are routinely set in this court without relevant disclosures being complete. Disclosure is a continuing process, and if there is a lack of disclosure in a fundamental area, it can be dealt with at any of the pretrials, motions before the court or the trial judge.

[42] In Ghandhi, [2016] ONSC 5612, Justice Code recently reviewed the law with respect to this point. His Honour states at para 35:

The court of Appeal has held, in Kovacs-Tatar, M.(N.N.), and Schertzer, that it is wrong to refuse to set a date for trial or preliminary hearing until Crown has disclosed "every last bit of evidence". A fortiori, it is wrong to refuse to set a date for a JPT because counsel is waiting for one "final piece of disclosure."

[43] Even where outstanding disclosure is significant, it cannot be used to hold up the setting of dates for trial. (Ghandi, para 34; Kovacs-Tatar, [2004] O.J. No.4756 (C.A.) at para. 47).

[44] I would not deduct any time for the defence's decision to wait for disclosure prior to moving the case forward in the circumstances of this case. However, I find that the defence counsel's approach was not one of attempting to expedite the trial process.

3.3: Defence Availability

[45] Another example of defence delay is where the defence is unavailable when the Crown and court are ready to proceed (Jordan, at para. 64).

[46] Looking at the transcript of January 19, 2016 the following summarizes the availability of the parties:

[47] The Applicant was available for the first dated offered which were February 29 and March, 2016, but the Crown was not. The dates of March 7 to 9, 2016 were not available to either the Crown or the defence. May 18 to May 20, 2016 were available to the court and the Crown but not the defence. More than half of the month of July was offered to the Crown and the defence but both were unavailable for all of the July dates. The Defence was then not available for all of August until September 5, 2016.

[48] The agent for counsel who set the trial date indicated that Mr. Rosenthal had several available dates in February, four days in March, six days in April, three days in May, one day in June and two days in July. He had no available dates in August and then several dates in September and 5 days in October which included the three dates that were booked for trial.

[49] Given this scenario, one can see that several dates offered by the trial co-ordinator did not work for the defence or the Crown. Mr. Rosenthal did not have three consecutive dates available to do the trial between May and September.

[50] Looking at the previous Morin framework, the time period when both parties are not available for trial would be considered neutral time. Following Jordan I would deduct at least two months due to counsel not being available. If we were operating under the old Morin guidelines approximately a month would be neutral time and a month would be defence delay (dates counsel are not available).

3.4: Delay below the presumptive Ceiling

[51] Where the delay falls below the new presumptive ceiling of 18 months the court may still order a remedy in clear cases where the defence can meets its onus that the delay is nonetheless unreasonable. To do so, the defence must establish that it took meaningful steps to expedite the proceedings and show that the case has markedly exceeded reasonable time requirements for the case. Stays beneath the ceiling will be rare and limited to clear cases. (Jordan, para 48).

3.5: Did the Defence take meaningful steps to expedite the proceeding?

[52] Mr. Rosenthal wrote several letters requesting the disclosure and in his last two letters he used strong language to alert the Crown that delay was a serious concern. However, meaningful steps to expedite the matter would have included conducting a crown and judicial pre-trial. Setting a crown pre-trial would only require a brief phone call. It is not uncommon for counsel to have more than one discussion with a Crown Attorney. If this did not work in terms of getting the disclosure in a timely fashion then defence counsel could have requested a judicial pre-trial and had a judge monitor and guide the disclosure process. Both of these vehicles are generally pre-requisites to setting a trial date in Peel.

[53] Given my comments earlier, I find that the defence in this case did not take meaningful steps to expedite this proceeding.

3.6: Reasonable Time requirements of the case

[54] 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 (Jordan, para 87).

[55] In considering the reasonable time requirements of the case, the 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. (Jordan, para. 89).

[56] The Applicant is charged with two common driving offences. A notice of application alleges a number of Charter breaches often raised in such trials. The matter was scheduled for three consecutive days.

3.7: Local considerations: Time to Trial

[57] The normal time to trial in the Ontario Court of Justice in Peel Region for this type of case, requiring both a Crown and judicial pre-trial, from set date to trial is approximately 12 to 13 months.

[58] Since August 2015, the Ontario Court of Justice in Peel Region has implemented a new scheduling system which requires that trials be conducted on consecutive days. The initiative was implemented to reduce delays by eliminating piecemeal or bifurcated trials and to avoid trials taking place over a period of months. To ensure that trials complete within the allotted time, they are scheduled on consecutive days. Generally, they are scheduled for a day longer than the time estimate would suggest. The new system has dramatically reduced the number of trial continuations. We have seen a significant reduction in the time it takes to complete trials. In this case, all dates offered by the Court to the parties were consecutive days of three.

3.8: Crown's Conduct

[59] Another factor which impacts the reasonable time requirements of a case is whether the Crown took reasonable steps to expedite the proceedings (Jordan, para. 90).

[60] With respect to Mr. Hart's matter, the file passed through a number of hands. However, had defence counsel scheduled a pre-trial he would have been dealing primarily with one Crown counsel.

[61] The procedural history as outline in Ms. Engineer's factum was not disputed by the defence; it outlined the following efforts made by the Crown:

(a) Within days of the laying of the information, the Crown requested the 911 audio CD, MTO search convictions and suspensions and statement from civilian(s).

(b) On Mr. Hart's first appearance, counsel's agent was provided with significant disclosure.

(c) Within three days of receipt of Mr. Rosenthal's 2nd letter requesting the cell DVD, the Crown sent a letter to police requesting the booking DVD, Booking/cells/release DVD and cells DVD.

(d) On Mr. Hart's second court appearance, Counsel's agent was provided with the breath room DVD and was advised that the cell video had been requested.

(e) On Mr. Hart's 3rd appearance, counsel's agent was provided with the 911 audio CD. Crown counsel mistakenly believed this to be the cell DVD.

(f) On the 4th appearance (Aug 21) Crown counsel requests that the defence at least set a Crown pre-trial.

(g) Counsel's Agent in an exchange with the set date Crown, mistakenly confirms that counsel is requesting the booking DVD.

(h) The Crown then made a request that the booking video be disclosed "asap" to the 11 division Crown this was not in fact the disclosure the defence was looking for, but the video incorrectly indicated by counsel's agent.

(i) On the 6th court date, the set date Crown provides the "holding cell" DVD.

(j) After two more letters are sent by the defence, the Crown responds indicating that the "Holding facility DVD" is available the following day.

(k) Defence counsel alerts the Crown approximately 10 days later that the video they received is of the booking, sally port and telephone areas in the holding facility. This CD is what the Crown and police refer to as the "holding facility" Video.

(l) On the 6th court date, the Crown advises that counsel should be in a position to have a Crown pre-trial and notes the matter has been outstanding since May 2015. The Agent incorrectly states the DVD is not working. What should have been relayed is the video called the "holding cell" video was not the same as the "cells" video; further the agent advises that counsel wants this before he will have a pre-trial.

(m) On October 7, the defence sends another letter. On October 16, Assistant Crown, Ms. Graham advises that the cell DVD was requested on October 13. On the following court date the cell DVD is finally provided.

[62] After reviewing the Crown's efforts I find that they were attempting to move the matter forward in a responsible fashion. As with assessing the conduct of the defence I am not to hold the Crown to a standard of perfection (Jordan, para. 90). Although defence counsel was clear in his letters to the Crown that he wanted the cell DVD, three court dates were wasted due to a miscommunication between counsel's agent and the set date Crown about the "holding cell video" versus the "cell video." The Crown's office appeared to have made genuine and reasonable efforts to provide the disclosure requested.

[63] On behalf of the Crown, Ms. Engineer submitted that the cell video requires more time to prepare and send then other items of disclosure. She indicated that a police officer is required to review the video prior to disclosing it. Defence counsel was willing to concede only that the video would take longer. No evidence was provided with respect to the time required to prepare the video, however given that it is likely that other persons unrelated to this investigation may well have been in police custody at the same time, it is reasonable to conclude that editing of cell area video is likely necessary.

[64] It is clear that the cells video can be important evidence and which an accused person is entitled to have prior to deciding whether to plead guilty or not. Given the recent development of the case law, the Crown's office will be held accountable for future delays as a result of failing to provide these videos in a timely manner.

3.9: The Big Picture

[65] The total time to be considered is from the laying of the information to the trial date, 17 months and 8 days.

[66] As instructed by the Supreme Court, I am not going to "parse each day or month as was the practice since Morin." If I step back from the "minutiae and adopt a bird's eye view of the case," (Jordan, para. 91), I would have to find that the court had several dates available when both the Crown and defence did not.

[67] It would appear that the reason the matter did not come to trial earlier was for three reasons: First, disclosure of the cell CD was not made in a timely fashion by the Crown. Second, defence counsel chose not pursue a crown pre-trial or a judicial pre-trial as a means of solving the impasse over disclosure. Third, both defence and Crown did not have a lot of availability to try the case. The Court offered dates one month, two months and seven months into the future but these dates were for the most part not agreeable to either party.

4.0: CONCLUSION

[68] If I assess the reasonableness of this case soley under the Morin framework I would view the first three months as inherent time requirements. I would divide the three months following this period in half as both parties played a role in not moving the matter forward. I would then look at when each party was available and what dates were offered. A month would be deducted to allow for the defendant to prepare for trial (Lahiry et al. (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525). I would be left with approximately ten and a half months of institutional delay. I would then turn to look at the prejudice suffered by the defendant in this case and take that into account in assessing whether the matter should be stayed. Mr. Hart has suffered prejudice like many people in his circumstances. Under the new framework prejudice is already taken into account when setting the bar at 18 months as being presumptively unreasonable (Jordan, para. 54).

[69] In this particular case, despite the fact that both Crown and defence were unavailable for several dates offered, three consecutive days have been set aside for Mr. Hart's trial within nine months from the set date. When I step back and look at all of the factors that contributed to the delay in this case I find that the defence has not met their onus in establishing that the case took markedly longer than was reasonable.

[70] Accordingly, the s.11(b) Charter Application is dismissed and the case will proceed to trial on October 24, 25, and 26, 2016.

Released: October 13, 2016

Justice Alison R. Mackay