Court File and Parties

Date: February 7, 2018

Court File No.: Brampton 16-10661

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Talwinder Grewal

Before: Justice Paul F. Monahan

Heard on: January 17, 2018

Reasons for Judgment on the s.11(b) Charter Application

Released on: February 7, 2018

Counsel

Mr. S. Ferrone — for the Crown

Ms. C. Wagman — for the Defendant

Judgment

MONAHAN J.:

Introduction

[1] Talwinder Grewal is charged that on or about July 2, 2016 that he did operate a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code (the "Code"). He is further charged with having operated a motor vehicle on or about July 2, 2016 while his ability to do so was impaired by alcohol contrary section 253(1)(a) of the Code.

[2] The defendant brought a s.11(b) Charter application returnable on the first day of trial on January 15, 2018. The Court received the s.11(b) application on December 27, 2017. The Rules of the Court require that Charter applications be brought on 30 days' notice and, in addition, that s.11(b) applications be heard 60 days in advance of trial. In addition, the s.11(b) materials in this case did not have all of the required transcripts notwithstanding the defence's best efforts to obtain them. Accordingly, the s.11(b) application did not comply with the Court's Rules. For oral reasons given on January 15, 2018, I deferred the hearing of the s.11(b) application until after the trial evidence was completed. The trial proceeded on January 15 and 16, 2018 during which time all of the trial evidence was heard. Final argument on the trial proper, the section 8 Charter application, the voluntariness voir dire and the s.11(b) Charter application was heard on January 17, 2018.

[3] These are my reasons for decision on the s.11(b) Charter application.

Law

[4] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada observed that the s.11(b) legal framework from R. v. Morin, [1992] 1 S.C.R. 771, involved doctrinal and practical difficulties which plagued the framework and "fostered a culture of complacency within the system towards delay" (see Jordan at para. 4). The Supreme Court noted that the culture of delay "causes great harm to public confidence in the justice system" (quoting from LeSage and Code, Report of the Review of Large and Complex Criminal Case Procedures (2008)). The Court stated that one of the doctrinal problems with the former Morin framework was that it was unpredictable in its application, confusing and complex requiring minute accounting which was the "bane of every trial judge's existence" (paras. 32-37).

[5] The Supreme Court of Canada in Jordan laid down a new framework involving a presumptive ceiling beyond which delay is presumed to be unreasonable. For trials in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of the trial. In the Superior Court, the presumptive ceiling is 30 months.

[6] The particulars of the Jordan framework may be summarized as follows:

1. A trial court hearing an s.11(b) application should calculate the total delay from the charge to the anticipated end of the trial (Jordan at para. 47).

2. From the total delay the court should deduct defence delay (Jordan para. 66) and the delay associated with discrete exceptional circumstances (Jordan at paras. 75 and 82).

3. Defence delay has two components. The first is delay waived by the defence. The other is delay caused "solely or directly" by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial. A further example of defence delay will occur where the Court and the Crown are ready to proceed and the defence is not (Jordan paras. 60-64; see also R. v. Cody, 2017 SCC 31, [2017] S.C.J. No 31 at paras. 28 to 35).

4. If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances (Jordan para. 68). This is the only basis upon which the Crown can justify a delay above the ceiling and avoid a stay. The absence of prejudice in cases above the ceiling is irrelevant (Jordan para. 81).

5. As indicated above, delay caused by discrete exceptional circumstances is to be deducted from the total delay to determine if the ceiling has been reached. The Crown and the justice system should attempt to mitigate if possible any delay resulting from a discrete exceptional circumstance. The Crown and the justice system need to prioritize cases delayed by unforeseen events. If that does not occur when it reasonably could have, then the entire period of delay occasioned by the discrete exceptional event may not be deducted from the total delay (Jordan para. 75).

6. Discrete exceptional circumstances may be an illness, an extradition proceeding or an unexpected event in the trial. An unexpected event at trial might include a recanting witness which causes the Crown to need to change course. Further, if a trial goes longer than expected despite good faith efforts on both sides to estimate the time required, this too may amount to an exceptional circumstance resulting from an unavoidable delay. The categories of exceptional circumstances are not closed. Trial judges are to be alive to the practical realities of trials and are to use their good sense and experience in determining what will constitute a discrete exceptional circumstance (Jordan paras. 69, 71-74 and 81).

7. Exceptional circumstances covers a second category other than discrete events: namely cases that are particularly complex. These are cases that due to the nature of the evidence or the issues require an inordinate amount of trial or preparation time such that the delay is justified (Jordan para. 77).

8. Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. In the absence of these two factors, the stay application will fail (Jordan para. 82).

9. As concerns defence initiative constituting meaningful and sustained steps, the Court should consider what the defence could have done and what it did. It is a matter of substance rather than form. It is not enough to put on the record that the defence wanted an early trial date. Having said that, the defence must act reasonably and not perfectly (Jordan paras. 84-85).

10. As to whether the time took markedly longer than it should have, this will require a consideration of the reasonable time requirements of a case which derive from a variety of factors, including the complexity of the case, local considerations, whether the Crown took steps to expedite the proceedings and other factors (Jordan para. 87).

11. The Supreme Court observed that they expected stays below the ceiling would be "rare" and should be limited to only in clear cases. In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay (Jordan para. 48 and 83).

[7] Jordan set out further considerations for transitional cases. I will not review those considerations here as both counsel agree that this case is not a transitional one, and I agree with this assessment. In this case, the charges were laid on July 2, 2016. Jordan was handed down on July 8, 2016. The first appearance in this matter was on September 2, 2016. Accordingly, during all of the court appearances and for all but the 6 days from July 2 to 8, 2016, the parties were operating under Jordan. Therefore, neither the Crown nor the defence can rely on the previous state of the law to support their actions or inactions.

Issue 1: Analysis - Calculation of Delay

[8] The first issue in this case is the question of the calculation of delay under the Jordan framework. The overall delay in this case runs from the initial charge on July 2, 2016 through to the "anticipated end of trial" to use the words of the Supreme Court in Jordan. The evidence in this case ended at 1 pm on January 16, 2018 (the second day of trial). Final argument on both the trial and the s.11(b) Charter application took place on January 17, 2018. If the s.11(b) Charter application had been brought in accordance with the Court's Rules namely 60 days in advance of trial, or such other reasonable time in advance of trial as may have been arranged and the s.11(b) was unsuccessful, then it is my view that argument on the trial proper (and the Charter application at trial and the voluntariness voir dire) could have been done in the afternoon on January 16, 2018. The parties could not do that because the Crown needed to get audio recordings for court attendances related to the s.11(b) application for which the defence was unable to obtain transcripts. Judgment on the trial proper could have been rendered on January 17, 2018. Accordingly, I will treat the "anticipated end of trial" for Jordan purposes as January 17, 2018. The overall delay is just under 18.5 months before considering whether other deductions should come off of the overall delay.

[9] By way of overview, the charges in this case were laid on July 2, 2016; a crown pre-trial held on October 12, 2016; a judicial pretrial was held on November 29, 2016 and a trial date of August 30, August 31 and September 1, 2017 was set that day with all police officer witnesses apparently available that day.

[10] On July 27, 2017, Crown counsel wrote to defence counsel and informed him that the breath technician was scheduled to be on annual leave from August 25 to September 7, 2017 and would not be available to attend the trial. Crown counsel advised that they had just learned of this development on July 25, 2017.

[11] On August 4, 2017 the Crown brought an application to adjourn the trial date which was opposed by the defence. The Court raised with the defence whether the trial could be bifurcated so that all of the witnesses except for the breath technician could be heard on the August 30 trial date with a further date being set to hear the one witness who was unavailable. The defence did not wish to bifurcate the trial. The Court granted the adjournment and the matter was adjourned to August 16, 2017 so that a new date could be set then. Defence counsel's agent was not in a position to set new dates on August 4, 2017.

[12] In my view the time periods that need to be considered as potentially deductible from the overall delay are (i) August 23, 2017 to August 30, 2017; (ii) August 4, 2017 to August 16, 2017; and (iii) November 6, 2017 to January 15, 2018. I will address each of these time periods and I will start with the last time period namely from November 6, 2017 to January 15, 2018 as this is the most significant one.

[13] When the adjournment was granted on August 4, 2017 and new dates were set on August 16, 2017, the trial coordinator offered the Crown and the defence a number of dates. In particular, the Court offered November 6, 7 and 8, 2017 when Crown counsel was available but defence counsel was not. There is a further note on the sheet that defence counsel was not available from November 8, 2017 to December 27, 2017. This ultimately led to the new trial dates being set for January 15, 16 and 17, 2018. I am aware that the defence has filed evidence on the s.11(b) application that defence counsel had other 3 days blocks available in September and October 2017 but these dates were not offered by the Crown and the Court.

[14] As I consider it relevant in this case, I note that both the Supreme Court and the Ontario Court of Appeal have found defence delay where the Court and the Crown are available and the defence is not: see Jordan paras. 60-64; R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741 at paras 21-22; and R. v. Cody, 2017 SCC 31, [2017] S.C.J. No 31 at paras. 28 to 35. See also the decisions of the Ontario Court of Appeal in R. v. Coulter (2016), 2016 ONCA 704, 340 C.C.C. (3d) 429 (Ont. C.A.) at paras. 73 and 76 and R. v. Mallozi, 2017 ONCA 644, [2017] O.J. 4303 (C.A.) at paras 42 and 44. There has been no discussion in these cases of the old law under R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, that defence delay did not necessarily run from the first date offered. Having said that, in addressing the issue of defence delay there is a complete absence in these cases of any analysis or consideration of the question of how many dates defence counsel were offered which, if Godin survived, one might reasonably expect to see.

[15] The defence in this case points to R. v. Albinowski, 2017 ONSC 2160, where that Court suggests that Godin survives under Jordan. This case is distinguishable from this one as it involved multiple defence counsel which raises different issues when one counsel is available and the other is not. I note as well that Albinowski was not a summary conviction appeal binding on this Court. Further, the Court of Appeal in R. v. Gopie, 2017 ONCA 728, [2017] O.J. 4963 (C.A.), decided after Albinowski, dealt with the issue of defence delay caused by a co-accused and, arguably, took a different approach. I note as well that other Superior Court judges appear to have taken the approach that when the Crown and the Court are available and the defence is not, defence delay arises: see R. v. Ghandi, 2016 ONSC 5612, [2016] O.J. No. 4638 (Sup. Ct. per Code J.) at paras 40 to 41; and R. v. Frail, [2017] O.J. No. 5234 (Sup. Ct. per Schreck J.) at para. 36. In fairness to the defence, I acknowledge that these cases also do not discuss Godin.

[16] In my view, for non-transitional cases, the Supreme Court in Jordan, Williamson and Cody, and followed by the Ontario Court of Appeal in Coulter and Mallozi, has implicitly overruled Godin. The direction from the Supreme Court is that if the Crown and the Court are available, and the defence is not, then that amounts to defence delay regardless of the number of dates offered or whether the defence was available earlier but the Court was not.

[17] I also understand that it can be said in this case that at the root of the entire problem that arose on August 4, 2017 when new dates had to be set was a problem entirely of the Crown's own making. I agree with that proposition. I also acknowledge the argument that there is a difference between the defence not being "ready to proceed" and being "unavailable".

[18] However, as the Supreme Court noted in Cody, mistakes will happen and the parties must respond to them. In my view, once the scheduling problem arose which was caused by the Crown was identified and the Court granted the adjournment, then new dates had to be set and it cannot simply be said that all of the time until all of the Court, the Crown and the defence are next available goes towards the presumptive ceiling of 18 months when earlier dates of November 6, 7 and 8, 2017 were offered (when the Court and the Crown were available). If that were the case, then a stay would be required without any inquiry into why the defence was unavailable and whether defence counsel's schedule could be altered. The case would be over 18 months and, not being a complex case, a stay would be mandatory, end of story. I do not believe this is a correct reading of Jordan, Williamson, and Cody.

[19] It is important to recognize that the entire framework for the s.11(b) Charter application has been restructured and recalibrated. Certain aspects of the framework favour the defence and others favour the Crown. For example, prejudice need not be established by the defence as it is built-in to the framework. For non-transitional cases in this Court, if the net delay in the case is more than 18 months, subject only to the complexity, the case must be stayed.

[20] Finally, even if Godin survives Jordan in some way, and I have concluded otherwise, in this case, the trial date sheet for the new trial date of January 15 to 17, 2018, in addition to noting the November 6, 7 and 8, 2017 dates being declined by the defence, notes that defence counsel was unavailable from November 8 to December 27, 2017. We don't know if the Crown or the Court had dates during that time but, in my view, when the defence counsel advises that no inquiry should even be made for that time period, it would be a factor to be considered when assessing the reasonableness of the November 6 to 8 dates for the purpose of calculating defence delay even if Godin survives Jordan.

[21] To summarize, I conclude that the two months and nine days between November 6, 2017 and January 15, 2018 needs to be deducted from the overall delay as defence delay.

[22] In my view, the delay from August 23, 2017 to August 30, 2017 should also be deducted as defence delay. When the initial trial date was set on November 29, 2016, the defence was offered August 21-23, 2017 when the Crown was available but the defence was not. I appreciate that the Court offered July 24-26, 2017 and the defence was available but the Crown was not but I note that this time goes towards the presumptive ceiling and works in the defence's favour under the Jordan analysis. I repeat that the one week from August 21 to August 30, 2017 represents a time period when the Court and the Crown were available but the defence was not. The case could have been tried on August 21 to 23, 2017. This one week should also be deducted from the overall delay.

[23] I would also deduct the time from August 4, 2017 to August 16, 2017 as defence delay. I note that defence counsel appeared by agent on August 4 and the agent did not have dates for defence counsel's availability. The Court specifically asked defence counsel's agent if there was some way that a new date could be set on August 4 but was told by the agent that they would need to come back and that is what occurred and why the matter was put to August 16. Any crown counsel can set a trial date using the trial sheet which was in existence on August 4. This twelve day period amounts to defence delay because the Court and the Crown could have set a date that day but the defence was not ready to do so.

Total Delay

[24] Accordingly, from the overall delay of 18.5 months must be deducted approximately three months (two months and 28 days) so that the overall delay is approximately 15.5 months which is under the presumptive ceiling.

Issue 2 – Analysis: Should a Stay Issue in This Case?

[25] Given that the total overall delay is under the presumptive ceiling of 18 months, the defence has the onus of establishing two things: (1) that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. In the absence of these two factors, the stay application will fail (Jordan para. 82). The Supreme Court observed that the defence benefits from a strong presumption in favour of a stay where the presumptive ceiling of 18 months is exceeded and that it is incumbent on it to demonstrate these points (Jordan para. 85) where the case is under the presumptive ceiling. I also understand and note that the defence does not have to act perfectly but rather must only act reasonably.

[26] In my view, the defence cannot establish the first requirement for a stay. The first requirement is that the defence must show "meaningful steps to demonstrate a sustained effort to expedite the proceedings". In this case, the defence says that it has made sustained efforts to expedite the proceedings. The defence points to, among other things, the fact that defence counsel was retained on July 5, 2016; that he wanted to set dates for trial as of October 14, 2016; that when the first trial date was set the defence was available as was the Court to try the case on July 24-26, 2017 but the Crown was not; and that after the case was adjourned on August 4, 2017, the defence acted reasonably.

[27] In my view, I do not think it can be said that meaningful steps were taken by the defence that demonstrate a sustained effort to expedite the matter. It is true that defence counsel was retained almost immediately but in my view, the Court needs to examine what happened once the defence was retained. The case was handled in a largely routine manner by the defence. This is not a criticism of the defence, it is merely a relevant observation. When disclosure was obtained, a Crown pretrial was held and then a judicial pretrial was held all as required. Trial dates could not be set on October 14, 2016 as a judicial pre-trial was required. Further, in my view, simply offering to try the case earlier (on July 24-27, 2017) when the original trial date was set does not qualify as a meaningful step to expedite the matter. It was a routine and straightforward date setting step.

[28] It is appropriate to ask what the defence could have done to expedite the matter. There were numerous things it could have done. First, on September 16, 2016, the matter was put over almost a month at the defence's request so that a Crown pre-trial could be done and it was held on October 12, 2016. It does not take a month to do a Crown pre-trial and, if it does, the defence should seek to establish that it tried to do it earlier in support of the "meaningful steps" requirement. There is nothing in the record on this point.

[29] On October 14, 2016, defence counsel sent the defendant to Court to try to set a trial date which could not be done as a pre-trial was required to be set. The pre-trial was set that day for November 29, 2016. The record is absent as concerns why it took until November 29, 2016 to hold a pre-trial. What efforts were made to expedite the pre-trial scheduling?

[30] As noted above, on August 4, 2017 when the first trial date was adjourned, the defence was not in a position to set new dates even though they were asked to by the Court to do so if possible. This led to a further adjournment of 12 days. The defence could have come ready to set new dates on August 4 if the adjournment was granted.

[31] Finally, there was a lengthy period from November 29, 2016 to the original trial date of August 30, 2017. The defence could have asked to return to court during this lengthy period of time (Nov 29, 2016 to Aug 30, 2017) to see if earlier dates could be offered by the Court.

[32] To be clear, the observations of what could have been done by the defence are not major criticisms of the defence. Defence counsel acted competently but that does not mean that the defence took meaningful steps that demonstrate a sustained effort to expedite the case. The delay here is well under the Jordan ceiling and it is the defence's onus to put forth a record on the s.11(b) application to establish the meaningful steps point and it has not done so.

[33] Further, on the second part of the Jordan test for a stay where the case is under the presumptive ceiling, the defence has not established that this case took markedly longer than it should have.

[34] The defence says that the Court should not approve of the conduct of the Crown in this case whereby dates were set for trial when the Crown knew or ought to have known that the breath technician witness was not available. Further, the defence says that it took the Crown far too long to identify the problem. The breath technician testified at trial that she did not recall the specifics of how her annual leave was scheduled in this case nor when it was approved. She said that it would often take months to get it approved and she could not say that it was approved as of the time the original trial date was set for November 29, 2016. Regardless of when the police approved of the breath technician's holidays, it seems clear to me that the Crown should have done a much better job in this case as concerns this scheduling issue. By Crown I mean both Crown counsel's office and the police. There should have been much better communication between Crown counsel and the police and the Crown should have known much sooner than July 25, 2017 that there was a problem with the first trial date. Having said that, once Crown counsel learned of the problem on July 25, 2017 they moved expeditiously to adjourn the matter on August 4, 2017 and the Court and the Crown gave the matter priority when a new trial date was offered just over two months later than the original trial date namely November 6, 7 and 8, 2017.

[35] I have said that this was a routine case. Having said that, even though it was routine, it was somewhat more involved than other cases in this Court: it was scheduled for 3 days when many drinking and driving cases are 1 or 2 days; there was a Charter application (based on a section 8 argument) and a voluntariness voir dire as well as an interpreter required. The point here is that common sense suggests that a trial where three days in a row is required is, generally speaking, going to take longer to schedule than a trial which is shorter than this time requirement. All of this leads me to conclude that even if the problem with the dates concerning the original trial had been identified earlier, and it should have been, it seems doubtful that a trial date comprised of three days in a row would have been obtained much earlier than November 6, 7 and 8 although it might have been. In any event, as indicated, some priority was given to the matter and only just over two months was lost based on the dates of November 6, 7 and 8 that were offered. It is obviously not desirable that any time was lost to this issue.

[36] The Supreme Court in Jordan urged trial judges to get away from the minutiae and to adopt "a bird's eye view of the case". The Supreme Court has made it clear that stays under the 18 month presumptive ceiling will be rare and will only be granted in the clearest of cases. In my view, this case was a fairly typical case heard in the Ontario Court of Justice: a three day trial with a Charter application and a voluntariness voir dire and requiring an interpreter. The overall time using the Jordan framework from the arrest through to the anticipated end of trial is 15.5 months which in my view is not "markedly longer" than this case should have taken to be tried. Fifteen and a half months is too long for a routine case such as this one to get the trial and the Crown did not identify the scheduling problem when it should have. Having said that, I cannot say that it took markedly longer than it should have. Further, as noted above, I have concluded that the defence has not met its onus to establish that it took meaningful steps that demonstrate a sustained effort to expedite the case. In my view, this case is not one of those clear and rare cases under the presumptive ceiling which the Supreme Court in Jordan suggested might be stayed.

Conclusion

[37] For the reasons set out above, the s.11(b) Charter application is dismissed.

Released: February 7, 2018

Justice Paul F. Monahan