Ontario Court of Justice
Date: March 7, 2017
Court File No.: Ontario Court of Justice - Old City Hall
Between:
Her Majesty the Queen
— AND —
Israel Delangel-Chavira
Before: Justice S.R. Shamai
Heard on: February 6, 2017
Ruling on Second 11(b) Application released on: March 7, 2017
Counsel
Fred Bartley — Counsel for the Respondent/Crown
Sonya Shikhman — Counsel for the Applicant/Defendant Israel Delangel-Chavira
Endorsement
S.R. SHAMAI J.:
Background and Procedural History
[1] Mr. Delangel-Chavira was charged with the dual offences of impaired driving and "over 80" on April 14, 2015. With a trial date set for September 26, 27, 2016, he brought an Application on July 13, to stay the charges for a breach of his Section 11(b) right to a trial within a reasonable time. The Application came just days after the decision of the Supreme Court of Canada in R. v. Jordan (2016 SCC 27) was announced.
[2] On August 18, 2016, I delivered reasons dismissing the application for a stay as a remedy for breach of Mr. Delangel-Chavira's right to a trial within a reasonable time. It had been argued July 13. My ruling was a clear signal that the trial would proceed on the dates previously set, September 26 and 27. Those dates were just under 18 months from the date of the alleged offence, April 4, 2015.
[3] On September 26, Mr. Delangel-Chavira did not appear for trial. Counsel learned partway through the day that the Defendant's father-in-law had died the preceding night, and understandably he was unable to attend.
[4] However, disclosure of the audio dispatch recording had still not been made, even on the first day of trial nearly 18 months after the event. Despite many letters requesting the item of disclosure, starting before the first court appearance, and despite setting the date for trial without the disc of audio dispatch recording, and despite letters seeking the disc after the trial date was set, the recording had not been disclosed even by the first day of trial. That day, Crown provided what he thought was a disc containing that recording, but it turned out to be blank. Police attempted to remedy this overnight, but on September 27 when Defendant returned for his trial, I learned that the recording thus disclosed was the 911 tape, not the audio dispatch. Crown took steps to remedy again, and provided the correct disc partway through the day. Defence listened to the tape, but asked for the opportunity to have the recording transcribed before cross-examining the investigating officer, and as well, before making a final determination of whether she was bringing a Section 8 application on behalf of her client. The request was due to the quality of the sound recording, which made it difficult to entirely understand the content of the 31 minute tape.
[5] In the result, on the two days set for trial, we took the evidence of the civilian witness, who attended both days, although he worked night shift prior to coming to court. While Crown should have anticipated calling the evidence of the toxicologist it would rely on, likely on the second day set for trial, and while Defence was prepared to cross-examine that witness without disclosure of the audio dispatch tape, the toxicologist was not available to testify.
[6] Defence announced on September 26 their intention to apply to re-open the earlier 11(b) application, argued days after the release of the Jordan decision. Counsel alluded to the very recent change in the law having negatively impacted the material she argued before the Court. I indicated that she could of course file her material, but that I would not have it served and filed in open Court. However, dates to continue the trial were obtained from Trial Co-ordinator's office. I set a confirmation date of October 4 with respect to any Section 8 application and the issue of Ms. Shikhman's cross-examination.
[7] On October 4, further dates were secured: December 19, 2016 and March 8, 2017 to complete the trial and January 10, 2017 for the application, if Ms. Shikhman was not required for cross-examination. The December 19 date would not work for the completion of the trial, due to toxicologist unavailability. Once Crown finally decided that he would cross-examine Ms. Shikhman on the affidavit, another foray into Trial Co-ordination was necessary. November 25 was selected as an available date for the counsel. The January 10 date was vacated. The trial was still anticipated to complete on March 8, subject to the applications.
[8] On October 4, Defence made clear that no Section 8 relief would be sought, and so no motion was to be filed.
[9] In fact no application in Form One was ever served and filed in relation to the re-opening application. However, an affidavit and materials setting out the substance of the argument were properly served and filed on September 26. Further materials were served and filed on November 8, in preparation for the November 25 hearing.
[10] I understand from representations made in Court that on November 16, in advance of the November 25 appearance set for the re-opening application, Crown advised that it would have witnesses available on November 25, should the application take less than the entire court day.
[11] In fact, upon hearing the application on November 25, I dismissed it, and a little over half a day remained to the Court. However, by reason of incorrect diarizing of the date, Mr. Delangel-Chavira was not in court that day. While I was content to hear the application to re-open, given counsel's instructions, I was not prepared to hear the evidence continue on the trial in the absence of the Defendant. Thereupon, Ms. Shikhman attempted to renew her application for a stay based on Section 11(b).
[12] As no application was before the Court for such relief, although counsel relied on a reference to the possibility of renewed application in her affidavit in support of the application to re-open the earlier 11(b) application, I acceded to the Crown/Respondent position, that notice be properly served and filed.
[13] On December 19, I heard the evidence of three officers in the Crown's case, as well as the toxicologist from the Centre for Forensic Sciences. Ms. Shikhman advised that she was taken by surprise, both that the expert witness was called that day and by some aspect of his testimony. She asked for an opportunity to consult her own expert, before deciding whether to call her client's evidence and possible other evidence. I gave her that opportunity by adjourning for the day. We adjourned at approximately 3:20 that day.
[14] The next scheduled date for this matter was February 6. Ms. Shikhman had been involved in a jury trial which was going longer than scheduled. She advised on the preceding Friday (February 6 was a Monday this year) that she had arranged with the Court in the other matter to attend on Mr. Delangel-Chavira's trial for an hour and a half on Monday. That time was used to argue the Application herein.
Legal Framework: R. v. Jordan
[15] I govern this application according to the jurisprudence enunciated in and following the decision of the Supreme Court in R. v. Jordan:
"At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court…If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable." (paras. 46-48)
The Court continues:
"We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling." (para. 56)
Application of the Jordan Framework
[16] At twenty two months and two days after the arrest date, the onus would be clearly on the Crown/Respondent to show that a time to trial well over the ceiling of eighteen months was not unreasonable, if Defence delay was not a significant factor. The delay in question needs to be assessed in its entirety to show no contribution by Defence. The time from charge to anticipated or actual end of trial, less any delay occasioned by the defendant, is the time to be considered in determining reasonableness, as a Constitutional measure under Section 11(b). If under eighteen months, Defence must show it took meaningful steps, albeit to a modified degree in a transitional case, to "demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have." (para. 48 Jordan). That was the basis on which I evaluated the application on the last occasion.
[17] Now, Applicant says delay is over eighteen months and so the Respondent must show that exceptional circumstances contributed to the delay over eighteen months.
[18] The critical exercise is to assess delay in a case pending in the system for a period exceeding 18 months, net of Defence delay. Thereupon, either the onus falls to Applicant or Respondent depending on that calculation.
[19] I noted in my ruling of August 16, 2016 that the record showed no meaningful steps were taken by Defence to expedite the hearing of the matter, as might justify a stay of a matter in the system less than 18 months. Nothing showed me that the case took markedly longer than it reasonably should have. Thus the application was dismissed.
[20] Now, with a longer period at issue, a finer analysis appears necessary. This is still a transitional case in which the assessment of elapse of time prior to July 8, 2016 reflects to some degree the law as it was understood at the time. However, with the calendar showing 22 months since the charge was laid, a different analysis applies, globally.
Analysis of Delay: Pre-Trial Phase
[21] The Crown accepted the burden of showing why the analysis of delay should assume net delay over 18 months. To be clear, I concluded in the August ruling that given a "culture of complacency" (as the coin was phrased by Moldaver J. in Jordan), both Defence and Crown and no doubt to some extent the Court itself played some role in prolonging the intake period beyond the usual. Responsibility for the time in preparation for setting a date for trial ought to be shouldered by all parties in this case.
[22] I include the Court as a concerned party, as it has a responsibility to at least make meaningful inquiry when a matter is, as in this case, the subject of repeated appearances over a period of months, all for the purpose of obtaining disclosure and conducting pretrial meetings.
[23] In this case, the first letter for disclosure was prior to first appearance: dated May 26. Initial disclosure was received on June 29, 2015 but several items, notably the breath room video, the 911 tape and the audio dispatch tape were the continuing subject of disclosure demands. Repeated requests for a non-existent in-car DVD recording were made. I commented on this aspect of the intake process in the August ruling. After initial disclosure, the repeated set date appearances became, counter-intuitively, less rather than more productive, in moving towards a trial. The conduct of a trial is after all the objective of the date setting appearances! Disclosure had not been forthcoming, and various misstatements and non-actions by counsel kept the disclosure process stuck. Eventually sufficient, though not full, disclosure had been made and steps were taken, not without falter, to undertake pretrial meetings. The date for trial was set on December 18, 2015. That date, reflecting intake time, is 6 months, 18 days after the first appearance.
[24] Until well after the trial date was set, a significant part of disclosure was not forthcoming from the Crown. The audio dispatch tape was not in possession of Crown or Defence when the trial began in September 2016. Because of this, the September trial dates could not be used except for the brief testimony of a civilian: the Crown did not make disclosure of the audio dispatch tape until the second day set for trial.
[25] In the previous ruling I made on an 11(b) Application brought in the pretrial circumstance, anticipating the completion of the trial in just under 18 months, I found that of the time elapsed, although the Crown was not without some responsibility for an inefficient use of time in pretrial steps, the Defence had to take responsibility as well. In the end result, there was no circumstance which the Defence could establish to show that the delay was unreasonable, being in total under 18 months. The criteria required for such a finding were not made out in this case: there was no effective Defence initiative to move the matter along, nor was the time to trial, just under 18 months, shown to be a marked departure from the norm for similar cases in the Region. The analysis at that time of the July application concerned an early transitional case, moreover, inasmuch as the progress of the trial was governed by the jurisprudence interpreting Section 11(b), prior to Jordan, until just eight days before.
[26] Now, although the case is clearly still a "transitional" case, the time to anticipated trial completion has unfortunately exceeded 18 months. If the delay in getting to trial exceeds 18 months, then the test is different from the one I used, according to Jordan, in determining the 11(b) application which was brought in July. The period of time between the dates set for trial on September 26, 27, 2016 and the anticipated date for completion of the trial, March 8, 2017 is the time upon which I must focus in order to arrive at a just result according to the law. While I will clearly factor in an analysis between April 14, 2015 and September 26, 27, 2016, the series of events between September 26, 27 and March 8 are circumstances beyond those implicated on the first application. That ruling, rendered in August on the July application, anticipated that the trial would complete by September 27. As the time from the charge to the new anticipated trial is approximately 22 months, does Defence delay reduce the delay below the presumptive ceiling, or does it exceed 18 months? If the latter, can the Crown establish exceptional circumstances to justify the excess?
Analysis of Delay: Trial Phase
[27] I would observe first, that although I commented in the August ruling that the actions of all counsel involved in this matter through the date setting and disclosure process to the point of setting the date exemplified the "culture of complacency" which the SCC targets in the Jordan decision as a significant reason for delay of trials, much of the history since that time shows earnest efforts by both counsel to complete this matter.
[28] Nonetheless, the impossibility of completing this straightforward trial within the dates set for it was set in motion on September 26 by two factors: the non-attendance of the Defendant on September 26 and the incredibly vexed disclosure process with regard to a simple item: the audio dispatch tape. To some extent, the apparent difficulties in determining toxicologist availability played a role as well.
[29] Clearly, the non-attendance of the Defendant on the day his father-in-law died is not a Defence delay in any blameworthy sense. It is part of the human context against which all trials play out, and would not be deducted from the calculation of delay in this case.
[30] Even if Mr. Delangel-Chavira had been present on that first day set for trial, however, Crown had still not fulfilled its disclosure obligations. While the jurisprudence is clear that a trial date ought to be set when disclosure is substantially complete (Lahiry, infra), the expectation in doing so is that disclosure will be made well ahead of the trial date to permit full preparation by counsel. In this case, there were over 10 months between the set date appearance and the trial dates. Not only was disclosure not made during that time, it still was not complete on the first day set for trial. It is hard to understand how the disclosure of a simple piece of anticipated evidence, in existence at the time of the alleged offence, could become so mired in inefficiency and apparently lack of care by police and Crown in carrying out their obligations to make full disclosure. The reality here is that by the second day set for trial, Defence had not had a realistic opportunity to review the disclosure. Counsel's unwillingness to cross-examine or commit to a position on potential Section 8 motion without it is understandable.
[31] Thus, even if the Defendant had been in attendance on the first day of trial, I would have adjourned at Counsel's request, and as I did on the second day, after hearing only the civilian witness. For some reason, the toxicologist, who would have testified on September 27, was not available, so the Court could not move ahead with the trial by hearing that evidence. I can say with some confidence now that absent the glitches, two days was a reasonable estimate of time for the trial.
[32] Due to the issues regarding a Section 8 application, which could not be clarified without the missing audio dispatch tape, and due to the issues concerning the evidence and hence counsel appearances required on the re-opening application, the October 4 appearance was necessary. I note that Crown was initially not prepared to state that day whether he would require Ms. Shikhman's attendance for cross-examination on her affidavit in support of the application, although the adjournment to October 4 had been strictly for the purpose of giving counsel to assess their respective positions. It was only under considerable pressure from the Bench that Crown made its decision, that it would require both Ms. Shikhman and Mr. Weinstein for the hearing of the re-opening application. I understood the application to be predicated on some lapse in adducing evidence given the recent change in the law. Scheduling became complicated given the schedules of three counsel, various witnesses, and the Court's commitments.
[33] The scheduling of the Crown's toxicology witness continued to be a problem. Crown made efforts to call a witness other than the one initially anticipated. It is not clear to me which witness the Crown had anticipated for September 27 or had on standby for November 25. As indicated, due to Mr. Delangel-Chavira's non-attendance on the day the re-opening application was heard, I was not prepared to hear any evidence, apart from Ms. Shikhman's that day. Thus, we have again a hypothetical situation: had Mr. Delangel-Chavira been in attendance on November 25, we might have used a half day to hear evidence. Even so, the trial would not have completed that day.
[34] On December 19, I heard the balance of the Crown's case. It did not take the entire day. As indicated earlier, I allowed a Defence adjournment request, prior to hearing the Defence case if any, as Defence was taken by surprise by some aspect of the evidence.
[35] Thus in the 11(b) calculation, I assess the period between September 27 and November 25 to be a delay attributable to the Crown. Between November 25 and December 19, we lost half a day of potential trial time due to Mr. Delangel-Chavira's mistake in not attending Court as required. Whether we might have completed the trial on December 19, had he attended on November 25, is hard to say, but given the surprise issue which arose for Defence with the toxicology evidence, I rather doubt it.
[36] February 6 was set for this present Application. As indicated earlier, it became unavailable to counsel for all but an hour and a half due to the unexpected but unexceptional obligation to attend further on a jury trial which exceeded its estimated time. Again one indulges in hypotheticals, if not to assess the end of trial at March 8: had February 6 been set for anything but the 11(b) application, we would not have been able to use it for that purpose given the events in Ms. Shikhman's jury trial obligation.
Chronological Overview of Post-September 27 Delay
[37] The overview of this chronology post-September 27 shows a number of things:
(i) Adjournments after September 27 were required by Crown's inexplicable late disclosure
(ii) The details of co-ordinating the schedules of three counsel and the court plus various witnesses made it difficult to allow for the "ideal" flow of evidence: ideally, as Defence suggested on September 27, two consecutive days would be set early for the evidence to be heard; but that was not possible within the foreseeable future. I was not advised of any consecutive days offered before March 8.
(iii) Some time was lost due to Mr. Delangel-Chavira's non-attendance on November 25, but my assessment is that the trial could not complete, in all the circumstances, before March 8, for reasons which did not accrue to Defence responsibility, in this analysis.
(iv) The patchwork of dates which was obtained after September 27 was the best the institution and the Court might be expected to provide and in isolation represents dates accommodating a two day trial plus motions within less than six months from the day counsel attended Trial Co-ordinator for scheduling. However, I do not lose sight of my initial observation that with all the hypotheticals one might engage concerning how things might have gone, the one thing that is clear, is that we could not start the trial on September 26 because of the bungled disclosure by Crown. In saying that, I do not mean to say that any one person was responsible for that failure, and I do not propose to untangle just what happened. The result however, is clear. The delay after September 26 is Crown delay.
Quantification of Delay
[38] I commented in my earlier 11(b) ruling, released August 16, 2016, that all parties had to take some responsibility for the "culture of complacency" demonstrated by the long intake period. The jurisprudence under Morin would assess reasonable intake time, in a straightforward drinking and driving case in Toronto, at two to three months. In this case, from the first appearance on June 1 until the trial date was set, December 18, six months and 18 days elapsed. This was excessive. Assessing the Defence role in that excessive delay, characteristic perhaps of the then-complacent attitude towards getting matters on for trial, I attribute one third of the responsibility which must be shared by both parties and the institution at the time. Thus, of the three months 18 days more than a reasonable intake period for a case like this might require, I assign one month and 6 days of it to the Defence.
[39] The other relevant time for consideration is the period between setting the date on December 18, 2015 and the trial date of September 26, 27, 2016. At a little over 9 months, this is not markedly longer than cases of this sort take between set date and trial date, at least pre-Jordan and possibly post-Jordan. That period of time has been referred to as institutional delay, and represents the time between setting a date and the trial taking place. No evidence has been called to suggest it is markedly longer than the norm. A review of cases [i] shows that the 8 to 10 month guideline in Morin prevails in the Toronto Region, and has for many years. A trial requiring more than one day may take longer to come to trial. But for the inexplicably long time to address disclosure and pre-trials, the time to trial would be unexceptional. Under the Jordan rules, that period of time still did not exceed the presumptively reasonable 18 months to trial.
[40] However, I must now account for the time required to complete the trial, anticipated to be March 8, 2017. That calculation takes into account events until the first trial dates, and the time required when the trial did not complete in the days set aside for trial. So, for Jordan purposes, I assess the eighteen months less eight days from April 4, 2015 to September 26, 27 net of a month and 6 days Defence role in excess time to trial, to represent 17 months 2 days delay in this calculation. I attribute the entire time from September 26/27 to March 8 to be delay attributable to the Crown, under the new rules, during a period when the old Morin rules are no longer of application. I do not see more than half a day of this period to be Defence delay: November 25, had Mr. Delangel-Chavira been at Court we could have heard evidence. No exceptional circumstances justify the elapsed time. The proposed trial, chopped up over time as it was, and punctuated by untimely applications and absent parties, both in terms of Defendant not present at Court and constantly changing toxicologist availability, was not looking ideal. Yet, these were the earliest dates available to the Court, I now being seized of this trial, yet committed to other matters. Counsel obviously had other commitments, as did the witnesses. Even with that difficult situation, dates were accepted for continuation subject to applications being brought, all within less than six months.
[41] Admirable as this trial coordination might be, it does not change the overriding character of those last five months twelve days: they were necessary as the Crown did not make disclosure of an item in existence since the time of the offence, consistently requested and reasonably required for preparation by Defence.
Conclusion: Exceptional Circumstances
[42] In the result, I adopt the analysis I performed for the first 11(b) application, of the elapse of time between April 4, 2015 and September 27, concluding that one month and six days of the 18 months was attributable to Defence delay. That left a "total" or net delay of 17 months and six days to be characterized as delay during that first period. The delay from September 26/27 to March 8 must be laid at the feet of the Crown for the reasons I have expressed. That amounts to an additional five months twelve days, less the half day we lost to Mr. Delangel-Chavira's non-attendance on November 25. I assess the total delay as twenty-two months, seventeen and one half days. That is higher than the presumptively reasonable 18 month limit for trials in the Ontario Court of Justice. The Crown was right to accept the burden of proof, to establish the presence of exceptional circumstances.
[43] Crown adduces no evidence of exceptional circumstance justifying the longer period of time to trial. Although a variety of circumstances made this a far less than ideal pretrial record, and intra-trial record, the one consistent theme delaying proceedings, even taking into account some early contribution to delay by Defence, is the non-disclosure of the audio dispatch tape. There is nothing about this fairly routine drinking and driving case that makes it exceptional, as the Supreme Court of Canada tells us, and the cases interpreting them since July make clear. Crown has not discharged its onus to rebut the presumption of unreasonableness. Thus, with twenty-two months and seventeen and one half days delay from charge to anticipated trial completion, I find that Mr. Delangel-Chavira's right to a trial without unreasonable delay has been breached. I am entering a stay of proceedings.
Released: March 7, 2017
Signed: Justice Shamai, S.R.
Footnote
[i] See: R. v. Coulter, 2016 ONCA 704 regarding implementation in Ontario of the Jordan rules. For a survey of timelines deemed reasonable or not on Section 11(b) applications in the Toronto area prior to Jordan, the following cases give a sense: R. v. Delaney, [2014] OJ No. 1660; R. v. Egorov, [2005] OJ No. 6171 (Peel Region); R. v. Carman, [2017] OJ No. 489; R. v. McWeeny, [2010] OJ No. 4454; R. v. Hamilton, [2010] OJ No. 4407; R. v. DePaola, [2010] OJ No. 2992; R. v. MacMillan, [2014] OJ No. 5447; R. v. Cano, [2014] OJ No. 684; R. v. Avellaneda, [2014] OJ No. 136; R. v. Lahiry, 2011 ONSC 6780; R. v. Peresotti, [2008] OJ No. 313; R. v. Meisner, [2003] OJ No. 1948, affirmed [2004] OJ No. 382.