Court File and Parties

Court File No.: Orangeville 16-222 Date: September 19, 2017 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Binesh Malik

Before: Justice Richard H.K. Schwarzl

Heard on: 31 August 2017

Reasons released on: 19 September 2017

Counsel:

• Ms. Jane Rodger for the Crown
• Mr. Barry Fox for the Defendant

SCHWARZL, J.:

Section 11(b) Charter Ruling

1.0: INTRODUCTION

[1] On February 24, 2016 a charge was laid against the Applicant, Mr. Binesh Malik, alleging that on February 12, 2016 he drove a car with excess blood alcohol. The trial completed on September 19, 2017, some 19 months later.

[2] The Applicant seeks a judicial stay of proceedings as a remedy for a claim that his right to be tried within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms was breached.

2.0: CASE CHRONOLOGY

2.1: Arrest and Release of Applicant: February 12, 2016

[3] On February 12, 2016 the Applicant was arrested by the Ontario Provincial Police at Caledon. He was released on a Promise to Appear and released without conditions. His first court appearance was set for February 25, 2017 at Provincial Court in Orangeville.

2.2: Swearing of the Information: February 24, 2016

[4] On February 24, 2016 a single-count Information was sworn alleging that the Applicant drove a motor vehicle with excess blood alcohol contrary to section 253(1)(b) of the Criminal Code of Canada.

2.3: Steps Taken Before Setting Trial Dates: February 25, 2016 to August 9, 2016

[5] On February 25, 2016 an agent appeared for both the Applicant and his lawyer, Mr. Michael DeRubeis. Initial case disclosure was provided to the agent. On behalf of the Applicant, the matter was adjourned at his request for eight days to March 3, 2016. The agent stated she would inform counsel of the Court's encouragement for a resolution meeting with the Crown prior to the return date.

[6] On March 3, 2016 an agent appeared for both the Applicant and his lawyer. After being provided with a DVD of evidence and a copy of the Information the agent informed the Court that a resolution meeting had been held. The agent requested the matter be postponed until March 31, 2016 to permit the Crown to provide counsel with "input" before deciding to set a trial date or to resolve the case. The matter was adjourned at the request of the Defendant for 29 days.

[7] On March 31, 2016 an agent appeared for both the Applicant and his lawyer. The agent advised that defence counsel needed to send a letter to the Crown regarding possible resolution. The agent asked on behalf of the Applicant that the matter be adjourned until May 12, 2016, a delay of 43 days. In making the request, the agent told the Court that "delay is not an issue."

[8] On May 12, 2016 an agent appeared for both the Applicant and his lawyer. At that time, a judicial pre-trial conference ("JPT") was scheduled. Defence counsel was not available on earlier dates offered by the Court, namely May 19, May 31, and June 9, 2016. It is unknown if the defence was available on any day other than those offered. Defence counsel was available on June 2, 2016 but turned it down in favour of June 14, 2016, a delay of 34 days.

[9] On June 14, 2016 Mr. DeRubeis attended for a JPT, after which he asked that the matters be adjourned until July 21, 2016 for his client to make a decision about what he wanted to do about the case. In adjourning the case for 38 days, counsel specifically waived his client's section 11(b) Charter rights for this remand.

[10] On July 21, 2016 an agent appeared for both the Applicant and his new lawyer, Mr. Fox. At the request of the Applicant, the agent set another JPT. The Applicant turned down a JPT on either July 26 or July 28, but did accept August 9, 2016 which was the third date offered by the Court. It is unknown if Mr. Fox was available on any dates other than the three offered. At the request of the Applicant, the matter was remanded to August 9, 2016, a delay of 20 days.

[11] On August 9, 2016 an agent appeared for both the Applicant and counsel for a JPT, following which a two-day trial was scheduled for May 5 and June 5, 2017. The Court had offered August 18, 23, 24, 25, 31 as well as September 1, 6 and 8, 2016 but neither the Crown nor the Applicant accepted any of these eight days. The Court did not offer any dates between early September and May 5, 2017, meaning that there was no court space available for 240 days, or 8 months. The Court next offered May 5, 11, 16, 17, 19 and June 5, 2017. The Crown was available for all days except for May 11. The Applicant was not available for any of the six days offered except for May 5 and June 5, 2017. In setting trial dates of May 5 and June 5, 2017 the agent told the Court that Mr. Fox was available for several dates in October, November, December, March, and April. By inference, he was not available in January or February even if the Court had offered dates then. It is unknown if the Applicant was available on any days between May 19 and June 5, 2017. The delay between setting the trial dates and the second of the two trial dates was 271 days, or 9 months.

[12] At the time the trial dates were set, a second-stage JPT was fixed for March 14, 2017.

2.4: Steps Taken After the Trial Dates Were Set: August 9, 2016 to June 5, 2017

[13] On September 20, 2016 this matter was brought forward at the direction of the Court as it turned out that the trial judge (me) was not available on the first trial date of May 5, 2017. Consequently, the first day of trial was rescheduled for June 13, 2017.

[14] The second-stage JPT took place on March 14, 2017 as planned. At that time, the two-day trial for June 5 and 13, 2017 was confirmed by both parties.

[15] On March 30, 2017 the matter was brought forward again by the Court due a scheduling conflict with the trial judge for the second trial date of June 13, 2017. The second date was rebooked for June 16, 2017.

2.5: Trial Proceedings: June 5 to September 19, 2017

[16] The trial started on June 5, 2017. The central issues at the trial were claims of two breaches of the Applicant's Charter rights. At the end of the first day, both parties agreed that the case would likely require a third trial date given the scope of the evidence being, or planned to be, proffered on the issues. The parties were offered June 21, August 14, 25, and 31 2017 but they both turned down all dates other than August 31. The Applicant stated that August 31 was agreeable to him and to the Crown.

[17] Between the second and third trial dates, the parties agreed between themselves that no more evidence on the trial proper would be called on August 31. They agreed to submit written submission so that judgment could be given on August 31.

[18] The matter was brought forward to the trial judge on July 6, 2017 to set timelines for the written submissions. At that time, the Crown tried to set an earlier date, but the Applicant was content with the return date of August 31, 2017.

[19] On July 25, 2017 the Applicant filed this 11(b) Charter Application returnable on August 31, 2017. On August 31, two things happened. The first was that rulings were given dismissing both of the two Charter applications at the heart of the trial per se. The second was that the 11(b) Application was argued. In support of his application, the Applicant provided an affidavit. The salient aspects of his affidavit include (a) that the charge has created a great deal of stress and impact on his daily and business life, as well as travel, (b) that the delay has caused stress, anxiety, depression, insomnia, shame and loss of productivity at work, and (c) that his first lawyer didn't get his permission to ever waive his 11(b) Charter right and that he wouldn't have agreed to his lawyer doing that.

[20] At the conclusion of the submissions, the Applicant waived his 11(b) Charter right between August 31 and the judgment date of September 19, 2017.

2.6: Total Time Between Swearing the Information and the Last Day for Trial

[21] The total time this case has been in the justice system is 574 days, or 19 months.

3.0: ANALYSIS

3.1: Applicable Legal Principles

[22] The guiding framework to assess this issue comes from the Supreme Court of Canada's recent companion judgments of R. v. Jordan, 2016 SCC 27 and R. v. Williamson, 2016 SCC 28 which were released in July 2016, just a few months after the initial trial dates for this case had been set. In R. v. Coulter, 2016 ONCA 704, the Ontario Court of Appeal provided a helpful summary of the new framework by the Supreme Court as follows:

Step 1: Calculate Net Delay

(a) Calculate the Total Delay from the date of the charge to the actual or anticipated end of trial.

(b) Subtract Defence Delay from the Total Delay, which results in the Net Delay. Defence Delay may result from:

(i) Defence Waiver: Clear and unequivocal defence waiver of his/her s. 11(b) rights;

(ii) Defence-Caused Delay: Delay caused solely by the conduct of the defence, including delay unavailability for trial when the court and the crown are available.

Step 2: Determine the Presumptive Ceiling

(a) For cases in provincial courts, the Presumptive Ceiling is 18 months.

(b) For cases in superior courts, or cases tried in provincial courts after a preliminary inquiry, the Presumptive Ceiling is 30 months.

Step 3: Calculate Remaining Delay, if Necessary

(a) If the Net Delay exceeds the Presumptive Ceiling, calculate the delay caused by Discrete Events that were a) reasonably unforeseen or unavoidable, and b) not able to be reasonably remedied once they arose (i.e. sudden medical emergencies), which results in the Remaining Delay.

(b) If the Net Delay does not exceed the Presumptive Ceiling, there is no need to consider Discrete Events.

Step 4: Remaining Delay Greater than Presumptive Ceiling

(a) Where the Remaining Delay is still greater than the Presumptive Ceiling, it is presumed that the delay is unreasonable.

(b) The Crown may only rebut this presumption of unreasonable delay by establishing that the case was particularly complex in that the nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time.

(c) Where the Crown cannot establish that the case was particularly complex, the charges against the accused will be stayed.

Step 5: Net Delay or Remaining Delay Less than Presumptive Ceiling

(a) Where the Net Delay or Remaining Delay is less than the Presumptive Ceiling, it is presumed that the delay was reasonable.

(b) In order to establish that the delay under the Presumptive Ceiling was unreasonable, the accused must show that:

(i) he made a sustained effort to expedite the proceedings; and

(ii) the case took markedly longer than it reasonably should have.

Where the accused establishes both of these elements, the charges will be stayed. Charges will only be stayed below the Presumptive Ceiling in clear cases.

Step 6: Transitional Cases where matter commenced prior to Jordan

(a) Where charges were instituted pre-Jordan, the application of the above framework must be applied contextually and flexibly, taking into account whether the parties justifiably relied on the pre-Jordan state of the law, which did not require defence initiative, and which accepted institutional delay as a justification.

(b) In Williamson, the Supreme Court suggested the relevant circumstances to consider in the contextual analysis including:

(i) the complexity of the case;

(ii) the period of delay in excess of the guidelines set out by the Supreme Court in R. v. Morin;

(iii) efforts by each party to move the case along; and

(iv) prejudice cause by the delay to the Accused.

3.2: Legal Principles Applied To This Case

3.2.1: Calculating Net Delay

(a) Total Delay

[23] In this case, the total delay between the swearing of the Information (February 24, 2016) and the last day for trial (September 19, 2017) is 574 days or 19 months.

(b) Deductions for Defence Delay

[24] With respect to clear, unequivocal waiver both parties agree that such waiver applies to the 20 day period between August 31 and September 19, 2017. There are 81 days divided between two other periods where the parties disagree if there was clear waiver. The first period is March 31 to May 12, 2016 (43 days) when the court was told by agent for the Applicant that "delay is not an issue." The second period in dispute is June 14 to July 21, 2016 (38 days) when counsel for the Applicant (not Mr. Fox) explicitly waived delay.

[25] The Applicant argues that since his previous lawyer did not get specific instructions to waive any time periods, the waivers in 2016 were not valid. I disagree that those waivers are invalid. Both the Court and the Crown must be able to rely on the representations made on the record by counsel or agents for defendants. To hold otherwise would bog down proceedings with Courts needlessly probing this issue on every appearance and would probably wind up requiring defendants to personally appear every time to ensure no confusion or ambiguity regarding waivers. In addition, if the Crown cannot rely on what they are told by agents or counsel, then they will press for earlier dates no matter what they are told by the defence. To find that the 2016 waivers in this case were not valid would do irreparable harm and prejudice to the Crown and adversely affect the efficient administration of justice. Therefore, the 81 days over the two periods in 2016 described above shall also be deducted as clear and unequivocal waiver.

[26] As for other, defence-caused delay I find that several deductions must be made. This first deduction is for 20 days when the Applicant turned down four JPT dates between May 12 and June 14, 2016 the earliest of which was May 19. The second deduction is 15 days due to the Applicant's request for a second JPT. It was his choice to get a new lawyer and must be accountable for any delay caused by this switch. Lastly, on July 12, 2016 the Applicant turned down two JPT dates between July 26 and August 9, 2016, the earliest of which was July 21, 2016, resulting in a further deduction of 19 days.

[27] Deductions totaling 155 days in this case are thus assessed for defence delay resulting in a net delay of 419 days, or 14 months.

3.2.2: Applicable Presumptive Ceiling, and Burden to demonstrate unreasonable delay in a transitional case

[28] As this case was in the Provincial Court from start to finish, the applicable presumptive ceiling is 18 months. Since the net delay in this case does not reach the applicable presumptive ceiling, there is no need to consider deducting any discrete events, if any. Furthermore, since the net delay is less than the presumptive ceiling, the delay is reasonable on its face. The burden is therefore on the Applicant to demonstrate two things: firstly, that he made a sustained effort to expedite the proceedings and secondly, that the case took markedly longer than it reasonably should have. But where, as here, the charge was instituted before the current legal framework came into force in July, 2016 the burden on the Applicant must be assessed contextually and flexibly, taking into account whether the parties justifiably relied on the pre-Jordan state of the law, which did not require defence initiative, and which accepted institutional delay as a justification.

3.3.3: Contextual and Flexible Assessment of Net Delay

[29] I find that the defence did not engage in a sustained effort to expedite this case. Prior to setting the trial dates in August, 2016 he appeared entirely content with the pace of litigation. When trial dates were set, he was not available for eight dates offered in August and September. Nor is there any evidence that the Applicant was available on any dates in the two months of January and February, 2017. As a result, the delay of 10 ¼ months between August 9, 2016 and June 13, 2017 must be reduced by 2¾ months to account for the unavailability of the Applicant between August 18 and September 8, 2016 and the first two months of 2017. The institutional delay based on the old rules is thus 7½ months up to the end of the two dates additionally set. Further, the time between June 13 and August 31, 2017 is neutral time because the parties underestimated the required trial time and does not count as institutional delay for two reasons. First, the applicant turned down several earlier dates and second, the Applicant said the date ultimately chosen was agreeable to him.

[30] On assessing the situation flexibly and contextually, the institutional delay was well within the guidelines in place at the time.

[31] The case was, in accordance with the law at the time, somewhat complex in that a single-count drink/drive case should take a day or less but in this case, both parties agreed the case would need two days, but as the case evolved they agreed that a third day might be necessary (although ultimately it was not needed, but it did cause delay).

[32] There is no doubt that the longer a case is in the system, the greater the prejudice to the Defendant. In this case, some prejudice was caused by delay and while real, was not of such quality or severity as to justify a judicial stay of proceeding. The overwhelming effect of prejudice was the fact of the charge, not the time taken to try it.

[33] Assessing this case in accordance with the principles applied to transitional cases, the Applicant has failed to establish that his right to be tried within a reasonable time has probably been violated.

4.0: CONCLUSION

[34] For the reasons stated herein, the Applicant's claim that his right to be tried within a reasonable time is dismissed. Given my rulings given on an earlier date, a finding guilt will be registered on the single charge of driving with excess blood alcohol.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice